Deepwater wind farm attracts a crowd ... of lawyers

THE DEEPWATER WIND-National Gird power-purchase agreement has attracted significant interest in the legal community, even as the wind energy company has been doing preliminary work on siting the Block Island wind farm. Avian radar, which will monitor bird migration, was installed in 2009 at the site of the island’s Southeast Lighthouse.
Posted 9/13/10

The uncharted waters surrounding what could become the first offshore wind farm in North America has left a bevy of attorneys navigating legal minefields that could still sink the proposal by Deepwater Wind, if not significantly alter its course.

When the R.I. Public Utilities Commission this summer mulled a power-purchase contract between Deepwater Wind and National Grid, at least 20 lawyers played a role. During some hearings, lawyers sat at four tables with support staff in the audience. The state’s top lawyer, Attorney General Patrick C. Lynch, made a personal appearance at the last hearing and vowed to appeal the commission’s approval of the contract to the R.I. Supreme Court.

He eventually did just that, and the legal challenge will undoubtedly lead to more lawyers, the addition of at least one judge and countless paralegals and interns.

Susan Farady, director of the Marine Affairs Institute at Roger Williams University, said the strong legal turnout for the wind farm proposal was expected given the high political profile of the project – Gov. Donald L. Carcieri is a prominent backer – and the lack of precedent for approving such a project.

“It’s a case of first impressions,” she said. “We’ve never sited one of these things before, so there’s a lot of interesting unresolved legal issues.”

Lynch and the environmental group Conservation Law Foundation argue the law that governed the PUC process violates the state’s constitution by favoring one company. Both also claim that the legislature trampled judicial precedent by forcing the commission to review the same contract twice, having rejected the original power agreement in March.

Plastics manufacturers Toray Plastics (America) Inc. and Polytop Corp. also filed an appeal, arguing the commission misinterpreted a state law requirement that a contract be “commercially reasonable.”

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