NextEra must address a long list of concerns

If NextEra Energy Inc. is going to win the state’s approval for its proposed $4.3 billion buyout of Hawaiian Electric Industries, it will have to commit to additional consumer and environmental benefits, according to groups involved in the state’s review of the sale.

The question for NextEra is whether it is willing to make those commitments or will it judge the price to be too high and walk away from the deal.

NextEra announced in December its plan to buy Hawaii’s largest utility, but the purchase has run into resistance from Gov. David Ige, state agencies, the solar industry, environmental groups and the Department of Defense. Florida-based NextEra needs the approval of the state Public Utilities Commission to proceed with the purchase.

None of the 28 parties, known as intervenors, involved in the PUC review came out in full support of the sale.

But many critics, including Ige, left the door to approval open by saying they oppose the sale “in its current form.”

The changes they would like to see NextEra adopt include providing more detail about promised customers savings, protecting Hawaii consumers from problems within NextEra’s mainland businesses and abiding by Hawaii values.

The proposal NextEra is offering is below the standards of most utility mergers and acquisitions across the country, as it did not guarantee protection to ratepayers if the parent company is hurt financially, was vague in the offered customer savings and lacked transparency overall, said Kyle Datta, founding partner of the renewable energy advocacy group Ulupono Initiative.

“Why should Hawaii be treated worse than any other state?” Datta said. “You pretty much expect these kinds of things to be a part of the package. This isn’t radical. This is what you should expect anywhere else.”

The state Consumer Advocate, Jeff Ono, gave a long list of changes NextEra will have to make if it is to have a shot at approval.

Ono’s testimony filed earlier this month said that NextEra needs to guarantee that compensation for NextEra’s executives will not be paid for by Hawaii consumers and that Hawaiian Electric Co. will not file a rate case for four years following the merger. Ono also wants NextEra to adopt the advocate’s rate plan that would result in consumer savings of approximately $250 million over four years.

NextEra needs to agree to create a $110 million investment fund for renewable energy infrastructure, Ono’s report said. The new parent of HECO — Hawaiian Electric Holdings — needs to have a voting board of directors that will mitigate the risk of NextEra’s investments outside of Hawaii affecting HECO, the report said.

Hawaiian Electric Holdings should also become a Sustainable Business Corporation pursuant to Hawaii’s B-corporation law, the report said. B Corps are certified by the nonprofit B Lab and recertified every two years. To be certified companies are graded on standards of social and environmental performance, accountability and transparency.

The B Corp certification provides one way to measure whether the company is abiding by Hawaii values, said Ian Chan Hodges, a consultant with the Consumer Advocate’s office.

“In exchange for its state-granted monopoly, Hawaiian Electric is required to serve the public interest,” Chan Hodges said. “What’s needed is a method for measuring performance in a manner that incorporates meeting public benefit obligations and reflects Hawaii’s values of not focusing exclusively on the single bottom line of profit. The B Corp certification process provides a way to measure whether or not the Hawaiian Electric Cos. — if they come under the ownership of NextEra through Hawaiian Electric Holdings — are benefiting Hawaii’s people, our island communities and our environment.”

The U.S. Department of Defense, the state Consumer Advocate, Ulupono Initiative, a well as other intervenors asked for ring fencing — a way to protect Hawaii’s utility and ratepayers if NextEra or its affiliates were to go bankrupt.

“Every utility merger has had (ring fencing),” Datta said. “Yes, they (NextEra) have a lot of renewables, but the bad thing is they have a tremendous amount of exposure to the merchant power market (producing and selling power to utilities). It’s overexposure — that is a risk that HECO does not have now,” Datta said.

Competition has been another concern for intervenors. Hawaii Gas filed a motion to compel NextEra to provide information about liquefied natural gas to the PUC, fearing the new company would favor NextEra affiliates for LNG contracts if the sale were to close. NextEra and HEI filed a motion in opposition to Hawaii Gas’ request.

“Our primarily concern is that they are looking to ultimately diminish competition in Hawaii,” said Nate Nelson, general counsel and corporate secretary for Hawaii Gas.

While NextEra has been the target of much criticism, it hasn’t indicated it’s backing away from the deal.

“We’re squarely focused on preparing our responsive testimony (to intervenors’ criticisms),” Rob Gould, spokesman for NextEra, said Wednesday in an email.

NextEra hired Jennifer Sabas, former chief of staff to the late U.S. Sen. Daniel K. Inouye, in June to help the company win state approval.

The intervenors say the original application NextEra filed with the PUC in January should be rejected if NextEra doesn’t agree to changes. But meeting the conditions could end up costing NextEra more than the company is willing to pay.

“This process has been managed so poorly by NextEra that it is going to be expensive — in the form of merger commitments — to salvage it that it may be cheaper to pay the termination fee and walk away,” said James Van Nostrand, counsel representing the Alliance for Solar Choice, a solar industry lobbying group. “Given the opposition to the merger from the opposing intervenor testimony, NextEra will have to put more money into the transaction, either in the form of rate concessions or commitments that will cost money.”

If the state PUC rejects the proposed purchase or if NextEra decides it no longer wants to pursue the purchase, NextEra could be liable for a $95 million termination fee to be paid to HEI.

Nearly half of the intervenors have said the PUC should reject the sale.

“It’s unrealistic that they (NextEra) will change their stripes,” said Colin Yost, legal counsel for Hawaii PV Coalition.

Henry Curtis, executive director of Life of the Land, said NextEra shouldn’t be offered a second chance to get the application right.

“NextEra put together a bad merger proposal. They refuse to answer questions,” Curtis said. “It shouldn’t be our job to fix it.”

Isaac Moriwake, attorney representing the Sierra Club in the review, said talking about conditions is backward. The Sierra Club has asked NextEra to withdraw its proposal.

“HECO and NextEra bear the burden to justify their takeover proposal in the first place, and it’s not our kuleana (responsibility) to rewrite their application by adding a shopping list of conditions,” Moriwake said.