February 23, 2011
Rhode Island

Court briefs due in appeal of R.I. wind farm

By Alex Kuffner, Journal Staff Writer, The Providence Journal, www.projo.com 23 February 2011

PROVIDENCE – The remaining parties in a lawsuit aimed at blocking an offshore wind farm near Block Island must prove their legal standing before the state Supreme Court will allow the case to proceed.

The three petitioners have until March 10 to submit briefs defending their standing under state law, according to an order issued by the court on Monday. If the court decides they do have standing, then oral arguments will be heard in May.

Under the order, the court granted recently elected Attorney General Peter F. Kilmartin’s request to drop out of the case. His predecessor in office, Patrick C. Lynch, filed a petition with the court in August seeking to overturn a power purchase agreement between developer Deepwater Wind and National Grid, Rhode Island’s dominant electric utility.

Kilmartin, a supporter of Deepwater’s proposal to install up to eight wind turbines within three miles of Block Island, said during his campaign last fall that he would not proceed with the case.

With the attorney general’s office out of the lawsuit, three other parties remain: the Conservation Law Foundation, a regional environmental group that filed a petition independently, and Toray Plastics and Polytop Corp., two manufacturers that filed together.

Polytop and Toray, both heavy users of electricity, object to the high price of offshore wind power in the contract approved by the state Public Utilities Commission.

Although the Conservation Law Foundation supports renewable energy, it filed an appeal because it opposed the statute that allowed National Grid and Deepwater to negotiate a deal, saying it amounted to special-interest legislation.

Craig N. Berke, spokesman for the Supreme Court, said that it is not common for the court to ask parties to prove their standing in a case.

In adding the case to the show-cause calendar and asking the petitioners to prove their standing, the court refers to Kilmartin’s decision to pull out.

“… his office’s departure from the field has focused the Court’s attention on the issue of the standing of the remaining petitioners, each purportedly aggrieved parties within the meaning of [state law], to continue their challenge to the commission’s decision,” the order says.

The order refers to a specific statute in state law governing appeals of decisions by the Public Utilities Commission. The statute says only that “any person aggrieved by a decision or order of the commission may” petition the Supreme Court.

Jerry Elmer, staff attorney for the Conservation Law Foundation, said he believes the environmental group has standing.

“CLF was a full party in both cases before the PUC,” he said. “CLF has a direct interest in the outcome of the case, because CLF wants to assure that renewable energy in Rhode Island is developed properly. We believe under controlling law, public-interest organizations like CLF are proper parties to lawsuits of this type.”

Michael McElroy, the lawyer for Toray and Polytop, also said he believes his clients have standing.

“I am confident that we have standing because Toray and Polytop are aggrieved and will suffer injury in fact if the Public Utilities Commission’s approval of the power purchase agreement is not overturned,” he said. “As shown by the evidence to the PUC, if the power purchase agreement goes into effect, Toray will pay above-market electric costs of $7.3 million and Polytop will pay above-market costs of $1.1 million over the 20-year contract.”