Deepwater Wind lawsuit allowed to proceed in R.I. Supreme Court

A LAWSUIT challenging a wind farm planned by Deepwater Wind off of Block Island will move forward, the R.I. Supreme Court ruled on Friday.
Posted 4/22/11

(Updated, 12 p.m.)

PROVIDENCE – In a setback for a planned $220 million wind farm off of Block Island, the R.I. Supreme Court allowed a lawsuit challenging the project to move forward on Friday.

In an order released Friday, justices said that Toray Plastics (America) Inc. and Polytop Corp. held a legal right to challenge the contract signed between wind farm developer Deepwater Wind and National Grid.

The two companies filed suit last year over the R.I. Public Utilities Commission’s decision to approve the contract. The plastics manufacturers complained the price of electricity in the contract – 24.4 cents per kilowatt-hour in the first year – was not “commercially reasonable” as required by law.

They told the court they had the right to sue because the contract would burden them with millions of dollars more in electricity costs per year.

The Conservation Law Foundation also sued, but the court said on Friday that the environmental group had no right to bring the appeal. The foundation had argued that lawmakers forced the approval of the contract by crafting a law specifically for Deepwater.

Friday’s decision, allowing the companies to continue the lawsuit, could be bad news for Providence-based Deepwater, which wants to build five to eight turbines about three miles off of Block Island.

Company officials initially wanted the farm to be operational by the end of 2012. Before Friday’s ruling, however, executives had already said that construction may not start until 2013, partly because the company needed the lawsuit resolved first.

Meaghan Wims, a spokeswoman for Deepwater, said the company had no comment on Friday's decision.

The court is now scheduled to hear arguments on the merits of the appeal on May 11 with a decision expected in the following weeks.

Shigeru Osada, senior vice president of engineering and maintenance at Toray, hailed the decision. But, he said, Toray recognizes that it still must ultimately prove the contract between Deepwater Wind and National Grid is flawed.

“We are just standing on the doorsteps but I was very pleased that we have an opportunity or chance to deliver our argument,” Osada said.

Meanwhile, the Conservation Law Foundation expressed disappointment that justices would not review the process of approving the contract between National Grid and Deepwater.

“The process by which [the Deepwater Wind project] was approved is deeply flawed,” staff attorney Jerry Elmer said in a statement. “We fear that this could have a chilling effect on the future of the renewable energy industry in Rhode Island, which would be a net loss for our citizens, our economy and our environment.”

For their part, the justices wrote that such a review belonged in the political arena, although two justices dissented and said the foundation should have been allowed to bring its appeal.

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