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  • Writer's pictureGeorge S. Van Nest

Do Power Producers Focus on Climate Change Policies Instead of Infrastructure Safety & Resiliency?

Updated: Oct 3, 2023

In the wake of the tragic fires in Maui, troubling details are emerging regarding how utility companies are allocating resources to meet regulatory demands. At this writing, the Maui fires are reported to have taken approximately 115 lives, caused over 1,000 people to be missing and destroyed hundreds of buildings. The fires are the deadliest in the United States in over 100 years. While tragedies happen, questions are starting to build about the focus of local utility Hawaiian Electric.

Initial investigations from sensor networks and cameras in areas of Maui point to trees falling on Hawaiian Electric power lines as the likely initial cause of the devastating fires. According to The Washington Post, a firm called Whisker Labs, which has advanced sensor networks that monitor grids across the country, recorded significant incidents with the system. Cameras in Maui also recorded “arc flash” incidents from when a power line faults or comes in contact with vegetation, another line, or gets knocked down discharging the power through sparks. While there were multiple fires burning in Maui on Monday, August 7, sensors detected two significant faults in the power grid in Lahaina early on Tuesday, August 8.

In the brief time since the fire, several lawsuits have been filed against the utility claiming that the company failed to take proper steps regarding power line safety after a 2019 fire, including shutting down power lines prior to intense wind conditions to avoid problems with downed trees or lines sparking a fire. The lawsuits claim that the company failed to act for years to mitigate fire risks. Among other items, the lawsuits point to Hawaiian Electric filings which acknowledge in press releases and state filings that downed power lines and infrastructure where vegetation growth is not addressed may increase wildfire chances but did not act on the findings.

In recent Wall Street Journal reports about the Maui fires, there are clear indications that the utility was aware for many years that unsecured power lines and increases in dry brush and vegetation across the island was leading to a substantial increase in wildfires. Significantly, The Journal reported that “the number of acres burned on the island soared to 39,000 in 2019, from 150 in 1999.” Further, that “roughly one-quarter of the state land in Hawaii is now covered by invasive grasses and shrubs.”

Following the 2019 wildfire season, Hawaiian Electric obtained a report that concluded that the utility should do significantly more to prevent power lines from setting grasses and vegetation on fire. In the span of time since, the utility has spent a mere $245,000 on wildfire projects. Significantly, the utility instead spent millions to try and meet a 2015 mandate created by legislators and climate change activists that would require 100% of the utility’s electricity come from renewable sources by 2045. Rather than ensuring grid stability and public safety from confirmed wildfire risks, the company focused predominately on transforming electricity generation.

The grid reliability and safety issues in Hawaii should serve as a caution to states on the mainland such as New York and California that are aggressively pushing climate change utility transformation. Forcing renewable energy transformation of power production should not come at the risk of public safety and grid security.

As we have reported previously, New York’s Climate Leadership and Community Protection Act (“CLCPA”) calls for greenhouse gas reduction from 1990 levels of 40% by 2030 and 85% by 2050. Consequently, New York is seeking a renewable energy generation target of 70% by 2030 and 100% emissions free by 2040. These targets are exceedingly ambitious and are replete with siting, approval, implementation, and reliability concerns.

A Final Scoping Plan (“the Plan”) was adopted by the CLCPA Climate Action Council in December 2022. The Plan will fundamentally change how New York residents live by banning gas heating equipment and cooking appliances. It requires adoption of zero-emission building codes and standards. All new residential construction projects in single-family and low-rise buildings will be required to install zero-emission equipment starting in 2025. The Plan requires energy-efficient heat pumps or other non-combustion heating systems in these residences after that date. High-rise residential and commercial buildings will be required to use zero-emission equipment in 2028.

Significantly, New York residents with existing homes will be required to replace fossil fuel burning heating units that fail after 2030 with zero-emission systems. As a result, if you have a natural gas boiler or furnace and it fails in 2030, the Plan mandates that you replace it with an entirely new technology at unknown cost and availability.

The Plan mandates transforming New York’s power system to meet the CLCPA standards. In particular, to meet the goal of an electric system that produces no emissions in 2040, it requires the deployment of 6,000 megawatts of solar by 2025 and 9,000 megawatts of offshore wind by 2035. The Plan also calls for deploying 3,000 megawatts of energy storage by 2030 in an attempt to create more in-state power and flexibility.

While New York does not typically experience tragic wildfires like occurred in Maui, there are regular snowstorms, windstorms, and ice storms. All of which can shut down power generation and transmission facilities or destroy transmission lines. The availability, cost, and reliability of renewable power sources does not appear to have been factored into the Plan in any meaningful way. In the aftermath of the Buffalo Blizzard in December 22, where many lost their lives due to frigid conditions, what happens if New York rapidly transitions to untested and unproven green power sources in the future and major storms hit the state? In particular, will energy systems mandated by the Final Scoping Plan and CLCPA provide safe, reliable energy and heat for New York residents experiencing severe weather?

George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation Practice Group and Chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at

Reprinted with permission from The Daily Record and available as a PDF file here.

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