Sierra Club filed its response Nov. 10 on the public availability of the NextEra evidentiary hearing transcripts.

1. EARTHJUSTICE ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES
NORTHWEST ROCKY MOUNTAIN WASHINGTON, D.C. INTERNATIONAL
November 10, 2015
Electronically Filed
Public Utilities Commission, State of Hawai'i
Kekuanao'a Building
465 S. King Street, Room 103
Honolulu, HI 96813
Re: Docket No. 2015-0022: Sierra Club's statement in response to Hearing Officer's
Recommended Prehearing Conference Order.
Dear Honorable Commissioners:
Sierra Club, by its counsel Earthjustice, hereby respectfully submits this statement in
response to the Hearing Officer's Recommended Prehearing Conference Order, filed on
November 5, 2015 {"Recommended Order"). Sierra Club does not have formal exceptions to the
Recommended Order and, in fact, appreciates and supports various helpful clarifications that it
provides. In particular. Sierra Club expresses its support for the follov/ing recommendations, in
the event that other parties may file exceptions to the same: (1) allowing flexibility and
discretion on the opportvinity for re-direct of all witnesses, and the order and length of
Intervenors' cross-examination of Applicants' w^itnesses; and (2) requiring parties to identify
and make available for cross-examination the sponsoring witness for responses to information
requests {"IR responses"). Sierra Club, however, also expresses a concern regarding the public
availability of the hearing transcripts.
Elexibility in re-direct of all witnesses and cross-examination by Intervenors.
Sierra Club supports the recommendations that: re-direct be allow^ed at the presiding
officer's discretion; the order of Intervenors' cross-examination of Applicants' witnesses be
subject to any agreement reached amongst Intervenors; and the length of the rotating timeslots
for Interveners' cross-examination be subject to the presiding officer's discretion, so as not to
interrupt the "flow" of an Intervener's cross examination. See Recommended Order at 4-5, 8,
%% 3, 4, 8.B. These recommendations promote fairness, a sound record, and efficiency in the
hearing process.
Eirst, allowing such flexibility in re-direct and cross-examination fulfills the legal
requirement that "[e]very party shall have the right to conduct such cross-examination as may
be required for a full and true disclosure of the facts, and shall have the right to submit rebuttal
evidence."^ All parties, including Intervenors, should have fair opportunities for redirect after
^ Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai'i 217, 236, 953 P.2d 1315,1334
(1998) (quoting Haw. Rev. Stat. § 91-10(3)).
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T: 8 0 8 . 5 9 9 . 2 4 3 6 F: 8 0 8 . 5 2 1 . 6 8 4 1 M P O F F I C E @ E A R T H J U S T I C E . O R G W W W . E A R T H J U S T I C E . O R G

2. Public Utilities Commission
November 10, 2015
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the cross-examination of their w^itnesses in order to "afford all parties [opportunities] to present
evidence and argument on all issues involved." Moreover, specifically regarding cross-
examination, Intervenors should be afforded latitude in their allotted time increments.
Intervenors may pursue lines of cross-examination that require more than 15 minutes to
develop, such as w^here detailed or voluminous documents are involved. Interveners' cross-
examination may also be prolonged through no fault of their own. Instead of cutting off cross-
examination artificially, and requiring the Intervenor to wait potentially for hours to resume.
Sierra Club supports the recommendation of allowing Intervenors additional time as
appropriate so as not to interrupt the "flow^" or continuity of cross-examination.
Moreover, flexibility in the order and length of Interveners' cress-examination helps
secure a "just, speedy, and inexpensive" hearing process, Haw^. Admin. R. § 6-61-1, because it
allow^s Interveners to facilitate efficiencies in their preparation of cress-examination and the
organization of the hearing. Sierra Club has no objection to the recommended general,
"default" order of Interveners' cross-examination. See Recommended Order at 6, f 7.
How^ever, to the extent that some parties may have a particular focus and interest in the subject
matter of a certain witness (e.g., because the v/itness directly responds to the parties' own
mtnesses), other Intervenors should be allowed to let those parties proceed earlier in order (i.e.,
cede their own position in the order, as opposed to their allotted time), without forfeiting their
right and ability to cross-examine the w^itness in a later turn in the rotation. Absent that option,
Intervenors may be forced to prepare duplicative cross-examination, which poses an undue
burden for Intervenors. Eurther, Intervenors may feel compelled to conduct obligatory cross-
examination to "hold their place" in line, whereas if they w^ere able to initially defer their
position to other parties, they may be able to forgo some or all cross-examination later.
Eor the same reasons, parties taking the initial lead should be afforded appropriate
flexibility on time, w^here they may require extra time to lay foundation, or may volunteer to
cover ground that subsequent parties w^ill not need to duphcate, but rather can build upon. In
sum. Sierra Club supports the recommendations regarding flexibility and discretion on
Interveners' participation in the hearing in the interests of both fairness and efficiency.
Requirement to identify sponsoring witnesses.
Sierra Club also supports the recommended requirement of identifying sponsoring
w^itnesses for IR responses for purposes of cross-examination during the hearing. See
Recommended Order at 8-9, f 9. This likewise promotes fairness and efficiency. In their IRs,
many parties instructed or requested Applicants to specify the sponsoring witness{es) for their
IR responses, anticipating the need for such information to facilitate the hearing process.
Applicants disregarded or evaded many of these requests, even w^here the IRs addressed
witnesses' testimonies.
Haw^. Rev. Stat. § 91-9(c) ("Opportunities shall be afforded all parties to present
evidence and argument on all issues involved.") (emphasis added).
For example, see Apphcants' Response to HG-IR-28(d), filed on September 30, 2015
("Applicants have not yet determined which w^itness, if any, will be supporting the response,
and reserve the right to identify such witnesses at the Pre-Hearing Conference or in accordance
with any further procedural order issued by the Commission in this docket."). As another

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November 10, 2015
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This problem mil waste precious time during the hearing (and Intervenors' allotted
timeslots) by forcing cross-examining parties to lay such foundation for each IR Response, and
to guess and play "Go Fish" as to w^ho may be the right w^itness. It also may enable gaming,
where no w^itness may ultimately take responsibility for an IR Response, or w^itnesses may point
to another v/itness whose time has already passed.
Sierra Club, therefore, supports ^ 9 of the Recommended Order, requiring the
identification of sponsoring v/itnesses for IR Reponses and the opportunity to cross-examine
those mtnesses. Moreover, in the event that Applicants fail to provide such sponsoring
mtnesses, or the identified sponsoring w^itnesses prove actvially unqualified to respond,
appropriate remedies should be available to the parties and the Commission, including:
potentially striking or otherwise disqualifying IR Responses and testimonies as non-responsive
or lacking foundation; applying adverse inferences; or other sanctions.
Concern regarding public availability of hearing transcripts.
Finally, Sierra Club expresses a concern regarding the recommendation that parties
"shall make the necessary arrangements directly with the court reporter" to obtain copies of the
hearing transcripts, w^hich seems to indicate that the transcript will not be posted online and be
made available to the public. Recommended Order at 10, *][ 12. Sierra Club understands that
the Commission has posted hearing transcripts online in previous dockets. If any case would
favor, and even necessitate, such public access to the transcripts, it would be this one, which is
indisputably the most monumental in the Commission's history.
The recommended arrangement regarding transcripts disproportionately disadvantages
non-profit interests with far less resources than Applicants. It also does not serve the general
public, many of w^hom have taken broad interest in this case. In sum, if the Commission is able
to work out an arrangement to enable the hearing transcripts to be posted online. Sierra Club
respectfully requests that it provide such pubhc access, in line with the importance of this case
to the public interest.
example, compare Sierra Club's Third Information Requests, filed on September 16, 2015
(addressing IRs to certain testimony and requesting Applicants to confirm that the witness is
sponsoring the response, or to identify any other sponsoring witness), with Applicants'
Response to Sierra Club-IR-36, filed on September 30, 2015 (generally objecting to the request
and stating that the witness "is prepared to affirm at the hearing or other processes to be
determined by the Commission that he has provided responses to specific information
requests").
Sierra Club also supports this recommendation to the extent that it addresses the issue,
which was expressly raised during the pre-hearing conference, whether Mr. Robo and Ms. Lau
will be available during the evidentiary hearing to address the IR Responses that they provided
to the Consumer Advocate, as well as other IR Responses that they may sponsor.

4. Public Utilities Commission
November 10, 2015
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cc: all parties {via email)
Very truly yours.
Isaac H. Moriw^ake
Kylie W. Wager
EARTHJUSTICE
Attorneys for SIERRA CLUB

5. FILED
2015 Nov 10 PIV1 16:33
PUBLIC UTILITIES
COMMISSION
The foregoing document was electronically filed with the State of Hawaii Public Utilities
Commission's Document Management System (DMS).