Hawaii Gas files motion for solar water heater ruling

Hawaii Gas has filed a motion to intervene in a suit against a state agency alleging that it was wrongfully allowing “wholesale exemptions” from a solar water heater mandate for tens of thousands of gas water heaters.

First Circuit Court Judge Jeffrey P. Crabtree ruled Feb. 5 that the state Department of Business, Economic Development and Tourism had wrongfully been allowing “wholesale” exemptions from the solar water heater mandate that went into effect nine years ago, requiring the installation of a solar water heater on every new home.

The decision was hailed as a long-fought victory by Earthjustice, which filed the suit in September on behalf of the Sierra Club and Hawaii Solar Energy Association, alleging that DBEDT was rubber-stamping nearly 100 percent of all variance requests for tankless gas water heaters.

DBEDT said it was making a good-faith effort to follow the statute, which includes tankless gas water heaters as one of four options available to applicants seeking a variance if a gas appliance is in the home. Since the ruling, DBEDT has stopped accepting applications for tankless gas water heater variances.

The motion was filed Friday, the day after Crabtree issued his decision in writing. The court has yet to decide whether the company should be allowed to intervene.

Nate Nelson, Hawaii Gas’ general counsel, said the company filed the motion to give residents the ability to choose affordable and energy-efficient, on-demand gas water heaters when building a new home in the state.

“One-size-fits-all mandates simply do not meet the needs of every family and homeowner across Hawaii,” said Nelson in a statement. “This was recognized by the Legislature when it allowed for on-demand gas water heaters on an exception basis in the original mandate, and has been further demonstrated by Hawaii’s citizens, who have sought more than 6,800 single home variances since 2010.”

At a time when many in Hawaii are struggling to afford a home, Nelson said that it’s essential to maintain affordable, energy-efficient and reliable choices for home water-heating needs.

“Hawaii Gas wants to preserve the ability of Hawaii’s families and homeowners to decide what water heating device best serves their unique set of needs, which are determined by a multitude of factors including family size, geographic location, and solar resources, all without breaking their budget,” he said.

In his written decision, Crabtree said it was clear that DBEDT’s implementation of the gas variance provision was contrary to the expressed intent of the Legislature that the variances be “rare, if ever, exercised or granted.”

Earthjustice attorney Leina‘ala Ley questioned why Hawaii Gas did not file a motion to intervene earlier, given that the suit was filed six months ago. Also, DBEDT already defended much of what the company is asserting: that its variances were to be approved as one of the four options provided by the mandate.

“From our perspective, we’ve already won the case and it should be over,” she said.

The solar industry lost an estimated $36 million in business, according to HSEA Executive Director Will Giese, while Hawaii residents lost out on millions of dollars in consumer savings.

While the upfront costs of a solar water heater are higher than a tankless gas water heater, it pays for itself over time, he said. The mandate also helps the state toward its goal of getting off of fossil fuels and reaching 100 percent renewables by 2045.

Hawaii Gas, being the only gas company in the state, was the primary benefactor for the variances, he said.

Marti Townsend, director of the Sierra Club of Hawaii, said Hawaii Gas was putting profits over people and the planet.

“At a time when Hawaii is forging full speed ahead to a 100 percent renewable, carbon-free future, Hawaii Gas is still busy trying to drag us back to the past,” she said in a statement. “It was always wrong to allow a special exemption for gas, and Hawaii Gas’s attempt to turn back the clock is not only wrong legally, but also on the wrong side of history.”

Christine Donnelly, who writes Kokua Line, was off on Monday. Her column will reappear Wednesday.