R.I. Supreme Court hears arguments over Block Island wind farm case

THE LEGAL saga surrounding Deepwater Wind's proposed wind farm off of Block Island continued on Wednesday in R.I. Supreme Court.
Posted 4/6/11

PROVIDENCE – The legal saga surrounding a proposed wind farm off of Block Island continued on Wednesday in the R.I. Supreme Court with an environmental group and two companies arguing they can sue to overturn a decision allowing the project to proceed.

The trio is asking the Supreme Court to throw out the R.I. Public Utilities Commission’s approval of a contract between National Grid and wind farm developer Deepwater Wind. Providence-based Deepwater wants to build six to eight turbines about 3 miles off the coast of Block Island.

The court's decision is expected within 60 days.

Toray Plastics (America) and Polytop Corp. argue they hold the legal right to bring the appeal because the two plastics manufacturers will see electric prices rise because of the wind farm.

Meanwhile, the Conservation Law Foundation’s Rhode Island chapter said it could sue because its members would suffer real harm caused by poor environmental policy.

In arguments lasting about an hour, lawyers traded legal volleys. Mike McElroy, a lawyer for the companies, said the contract would unfairly and uniquely burden his clients. McElroy said contract and the state law governing it would add an “outrageous amount” to the companies' electric bills even though neither company purchases electricity from National Grid.

“There’s no question that Toray and Polytop will be injured by this,” McElroy told the justices and a packed gallery of about 60 people.

McElroy noted that the companies employ hundreds of people and that other manufacturers also expressed concern about increased electric prices stemming from the contract. He told the justices it would be in the public interest for the court to review whether the PUC accurately weighed whether the rates were “commercially reasonable” as required by law.

Justice Maureen McKenna Goldberg questioned whether Toray and Polytop were any different from any other electric customer. She also questioned why those representing the public – the governor, lawmakers and the state attorney general – were not joining the appeal if the contract harmed the public. (Former Attorney General Patrick Lynch did appeal the PUC decision but his successor, Peter Kilmartin, dropped the appeal.)

“The only difference is you buy a lot of electricity,” said Goldberg, whose husband has served as a lobbyist for Deepwater Wind.

The attorney for National Grid and Deepwater Wind, Gerald Petros, argued that the PUC's approval of the contract was not a rate case and as such customers had no legal standing.

Although the contract set a price for electricity from the farm – 24.4 cents in the first full year of operation – Petros said there was no discussion about how to allocate the related costs.

Instead, he said the PUC merely ensured that the contract met the criteria set under a state law. The issue, he said, received plenty of attention from the governor, elected officials and the media, making a review by the court unnecessary.

“Toray is not going to tell you what’s in the interest of the public,” he said. “They’re going to tell you it’s not in their interest.”

Some justices, however, expressed concern that the cost of electricity would never receive a hearing on its merits.

“The problem I see is the rates will be determined later, Mr. Petros, and there will be no chance for review,” Justice Francis X. Flaherty said.

In a separate argument, Jerry Elmer from the Conservation Law Foundation said the price was not the only issue that deserved review. He said that National Grid and Deepwater circumvented existing laws and judicial precedent after the PUC initially denied a proposed power-purchase agreement. After the denial, the General Assembly hastily amended the law and all but compelled the PUC to review the contract again. CLF argued the law changes essentially ensured that the PUC would approve the contract.

Elmer told the court that the organization’s members held a stake in ensuring good government because bad policy can, in the long-term, lead to tangible environmental problems for its members in Rhode Island.

When John MacFadyen, a lawyer representing the governor and legislative leaders, called the law change a situation “not likely to be replicated,” Justice Flaherty took issue with the statement.

“It seems to me just the opposite,” he said. “If it works they are going to keep doing it until someone stops them.”

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