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Renewable Energy & Clean Technology

The Renewable Energy and Clean Technology Group at Carlsmith Ball has provided instrumental counsel on some of Hawaii's most important renewable and alternative energy projects, including wind, geothermal, solar, waste-to-energy and other energy projects. The firm's practice encompasses assisting clients in developing, financing and operating energy projects that sell electric energy to Hawaii's electric utilities for resale to their customers. These clients include generators using renewable energy resources-wind, solar, geothermal, biomass, OTEC (ocean thermal energy conversion), wave energy, hydroelectric, waste-to-energy and biofuels.

We provide counsel and guidance to U.S. and international clients as well as government agencies in the following areas:

  • Structuring and forming business entities such as public and private partnerships and project entities to develop, own and operate energy facilities that sell electric energy to utilities
  • Developing energy projects, including due diligence, site acquisition, land use and zoning, permitting, environmental assessments and environmental impact states, construction or EPC contracts, project finance arrangements, government filings with federal, state and county agencies
  • Operating and expanding power plant facilities
  • Structuring and assisting in financing arrangements, including project and bond financing, and obtaining state legislation authorizing issuance of special purpose revenue bonds to finance energy projects, and working with the state and related financing parties for the issuance of such bonds
  • Negotiating power purchase agreements with electric utilities for the purchase of power generated from renewable energy resources, including renewable energy resources (such as wind, geothermal, solar and other renewable energy resources) as well as power from fossil fuels
  • Preparing and seeking legislation, including energy incentive legislation
  • Initiating and otherwise participating in Public Utilities Commission proceedings involving energy matters
  • Providing representation and counsel before governmental agencies, including applying for and negotiating state leases for geothermal resources

Representative Experience

Wind Energy-Assisted First Wind Energy, a national developer and operator of wind energy projects, in negotiating a power purchase agreement with Hawaiian Electric Company, Inc., for a 30 megawatt (MW) wind energy project on Oahu, Hawaii. This is one of the first wind energy projects in the U.S. that has a significant battery energy storage system, and is the first wind energy project to receive a U.S. Department of Energy loan guarantee. We also assisted First Wind Energy in its 30 MW project at Kaheawa in Maui and its second 21 MW project adjoining the Kaheawa project, as well as with its 70 MW wind farm in Kawailoa, Oahu. The firm has also assisted First Wind in several proceedings before the

Hawaii Public Utilities Commission.The firm represented Windfarms Ltd. in the anticipated development of an 80 MW wind energy project at Kahuku, Oahu, that was to use 20 3.5-MW wind turbine generators. Our work included negotiating a power purchase contract, a development agreement and related agreements with Hawaiian Electric Company, Inc. This was to be a leveraged lease transaction using a project finance approach. We obtained state legislation to facilitate the project and worked with the State of Hawaii to obtain rights to use state land as well as the required state permits. We obtained the required lease rights to the project site through negotiations with the U.S. Army to obtain access to specific areas under its control. Ultimately, the project was abandoned because of the unexpected unavailability of the multi-MW wind turbine generators.

We represented Kamaoa Wind Energy Partners in its development of a 10 MW wind energy project at South Point on the island of Hawaii, including obtaining the required financing through the issuance of some $11 million of special purpose revenue bonds by the State of Hawaii.

We represented The New World Power Corporation, a publicly traded corporation, in its acquisition of a 10 MW Kahuku wind farm on Oahu from Hawaiian Electric Renewable Systems, Inc.

We assisted Bank of Hawaii in negotiating a $15 million bank debt facility by Bank of Hawaii and American Savings Bank to Hawi Renewable Development, LLC, for an existing 10.56 MW wind energy project in Hawi, Hawaii. This included negotiating and documenting the financing, coordinating the financing arrangements, and negotiating the consent by Hawaii Electric Light Company, Inc., the project's energy off-taker, to the financing arrangements.

Geothermal Energy-The firm has been extensively involved in facilitating the development of Hawaii's geothermal resources for power generation. We have represented several major geothermal developers, and have been involved in the development of geothermal legislation as well as drafting the state geothermal resources leasing regulations.

We have represented Puna Geothermal Venture in obtaining the geothermal permits to develop its 30 MW geothermal power plant on the Island of Hawaii, which sells electric energy to Hawaii Electric Light Company, Inc., and have assisted in all aspects of the development, financing and operation of this project. Our involvement encompasses the regulatory, administrative, governmental relations, environmental, project finance and organizational aspects of this project. We continue to represent Puna Geothermal Venture in its potential development of additional geothermal energy projects in Hawaii.

Cogeneration-We represent Kalaeloa Partners, L.P., in the development and operation of its 200 MW cogeneration project on Oahu, including negotiating a power purchase agreement with Hawaiian Electric Company, Inc. We assisted in acquiring the project site, in concluding both interim and permanent financing, and assisted in proceedings before the Hawaii Public Utilities Commission.

We represented Enserch Development Corporation in the development of a 60 MW power generation plan on the island of Hawaii. Our work included structuring the project, assisting in the negotiation of the site acquisition, determining and meeting all permitting requirements, negotiating a power purchase contract with Hawaii Electric Light Company, Inc., obtaining the Hawaii Public Utilities Commission's approval of the final power purchase agreement, fulfilling environmental regulatory concerns, assisting in concluding the financing arrangements, and similar matters. We obtained special purpose revenue bond authorization from the Hawaii State Legislature to provide financing for the project and participated in several contested case proceedings before the Public Utilities Commission involving the project.

Hydroelectric Projects-Carlsmith Ball has assisted clients in undertaking hydroelectric projects in Hawaii, including Wailuku River Hydroelectric Company, Inc., which developed and operates a 10 MW hydroelectric project on the island of Hawaii. Our work has encompassed reviewing environmental issues involved, assisting in obtaining the state land and water lease agreements, obtaining State legislative authorization for the issuance of special purpose revenue bonds as part of the financing for the project, closing such financing, and related work.

Waste-to-Energy (HPOWER and GPOWER) Projects-We represent the City and County of Honolulu in negotiating a power purchase agreement with Hawaiian Electric Company, Inc., in connection with the expansion of the HPOWER municipal solid waste facility that provides firm capacity and energy to HECO.

We previously represented one of the two bidders in the initial HPOWER project on Oahu on the Hawaii legal, regulatory and related development aspects as well as the bond financing arrangements that were then being negotiated. This project was to be a municipal waste-to-energy project, with the ancillary recovery of certain metal products. This first project was later terminated. On the subsequent GPOWER project, we worked with the successful bidder in reviewing the use of special purpose revenue bonds and general obligation bonds to finance the approximately $240 million project. This second project was successfully completed and is now in operation, generating electric energy sold to Hawaiian Electric Company, Inc.

We assisted Energy Answers International, an international developer, owner and operator of municipal solid waste disposal systems, in responding to a request for proposals issued by the City and County of Honolulu for the financing, design, construction and 20-year operation of a municipal solid waste facility. The City subsequently cancelled the solicitation.

Wave/Hydrokinetic Energy Project-We represent Oceanlinx LLC, an Australian firm, and Oceanlinx Hawaii LLC, its Hawaiian subsidiary, in developing a 2.7 MW wave energy conversion project offshore of Maui which will generate electric energy for sale to Maui Electric Company, Ltd.. We obtained state authorization for the issuance of special purpose revenue bonds to assist in financing for this project and are assisting in negotiations for a power purchase agreement as well as in fulfilling permitting requirements.

Solar Energy Projects-We represent Sunetric Capital LLC, which develops and operates solar photovoltaic projects for commercial and residential clients.

We have also represented SunPower Corporation, one of the nation's largest solar energy companies, which manufactures and designs solar products for residential, commercial and power plant applications and develops solar energy solutions for these customers.

We assisted Sopogy, Inc., which has developed a concentrated solar power project on the Island of Hawaii, and sells the electric energy to Hawaii Electric Light Company, Inc.

Biomass Projects-The firm represents Green Energy Team, LLC, in the development of a 8.6 MW biomass energy facility on the island of Kauai. The generated energy will be sold to Kauai Island Utility Cooperative.

We represent BioEnergy Hawaii LLC, in its development of a waste conversion facility on the island of Hawaii. Carbon dioxide generated by the facility may be used for an algae production operation.

Ocean Thermal Energy Conversion Projects (OTEC)-We represent Sea Solar Power International LLC (SSPI), which is developing ocean thermal energy conversion (OTEC) projects at several sites throughout the world, including Hawaii. We are assisting it in the development of a 100 MW OTEC project offshore of Oahu that will sell generated electric energy to Hawaiian Electric Company, Inc., including negotiating power purchase arrangements.

State Legislation-Over the years, we have worked extensively with the state administration and legislature in successfully proposing and obtaining legislation to encourage alternate energy development in Hawaii. We have been involved in legislative efforts to reduce the state's general excise tax from 4% to 1/2% payable on revenues received from the sale of electric energy generated by alternate energy producers to electric utilities, in excluding from regulation as a public utility certain alternate energy developers and projects, in designating wind energy projects as a permitted use in agricultural district lands, in authorizing several energy projects for the issuance of special purpose revenue bonds to provide the financing for these projects, in providing energy tax credits for alternate energy projects using certain types of alternate energy technologies and devices, in using a mediation process instead of a contested case administrative agency process in applications for geothermal resource development permits, and in consolidating and expediting a permit review and processing procedure for an inter-island cable/geothermal energy project.

We also worked with the City and County of Honolulu Administration and the City Council in obtaining legislation that amended the Comprehensive Zoning Code to include wind energy projects as a permitted use under that Code.

Public Utilities Commission-Carlsmith has represented energy and energy-development firms in Hawaii Public Utilities Commission proceedings involving the development of specific energy projects, as well as in dockets investigating implementation of feed-in tariffs, an electric utility decoupling mechanism, intra-governmental wheeling as well as the Integrated Resources Plans of several electric utilities. We have also been involved in several PUC proceedings, generally assisting the electric utility's counsel in seeking PUC approval of various power purchase contracts that the firm's clients have entered into with the electric utilities on Oahu, Maui, Hawaii, and Kauai.

Federal Activities-Carlsmith Ball attorneys worked with the Federal Energy Regulatory Commission during its preparation of its regulations under Public Utility Regulatory Policies Act of 1978. They also submitted an amicus curiae brief to the U.S. Supreme Court on behalf of the Hawaiian Sugar Planters Association in Federal Energy Regulatory Commission, et al. v. State of Mississippi, et al., which dealt with the constitutionality of the cogeneration and small power production provisions of PURPA, and they presented testimony to the Internal Revenue Service on its then proposed IRS regulations governing the investment tax credits for wind energy property.

Hawaii Deep Water Cable Project-The firm was awarded a contract by the State Department of Planning and Economic Development (DPED)-now know as the Department of Business, Economic Development and Tourism (DBEDT)-to undertake a preliminary analysis of the legal, institutional and financial aspects of a deep water electrical transmission cable linking Hawaii and Oahu. This proposed project entails the development of geothermal resources on the island of Hawaii capable of generating up to 500 MW of geothermal resources electric energy and the transmission of that energy through an undersea electrical transmission cable to the island of Oahu. We were a principal author of the study, Preliminary Analysis: Legal, Institutional and Financial Aspects of an Inter-Island Electrical Transmission Cable, reviewing in detail the international, federal, state and county legal regimes applicable to a deep water cable system, as well as the alternative organizational and financing approaches for the proposed project. The firm undertook a subsequent study for the DPED which reviewed in detail public, private and mixed public-private development scenarios. We later assisted the DBEDT in preparing proposed legislation for a cable authority and a comprehensive expedited permit review and processing system for the proposed project.

Hawaii Inter-Island Cable Project-We represent Hawaii Infrastructure Partners, LLC, a consortium of firms engaged in developing and operating an undersea electric energy transmission cable system, in the potential development of an inter-island electric transmission cable system connecting proposed major wind energy projects on Molokai and Lanai to HECO on Oahu. The project is being led by the State of Hawaii and Hawaiian Electric Company, Inc.

The Carlsmith Difference

Our long-standing and extensive experience, acumen and track record of substantial involvement in almost all major energy project developments in Hawaii-alternative and conventional-coupled with our good working relationship with electric utilities and government regulators and policy makers, has made Carlsmith Ball Hawaii's preeminent energy law firm. Members of the firm were instrumental in drafting some of the legislation that makes alternate energy feasible in Hawaii. We work closely with our other practice groups-especially tax, labor, real property, environmental and administrative law section-as well as our other offices to provide creative, innovative and highly effective solutions and approaches to complex energy development challenges.