February 24, 2011
Rhode Island

Justice Goldberg won’t quit wind case

By Alex Kuffner, Journal Staff Writer, The Providence Journal, www.projo.com 24 February 2011

PROVIDENCE – If the Rhode Island Supreme Court moves forward with a case involving Deepwater Wind, Justice Maureen McKenna Goldberg will take part despite her husband’s past work as a lobbyist for the offshore wind developer.

On Feb. 11, the court denied a motion that asked Justice Goldberg to be removed from the case. The order notes that Justice Goldberg did not participate in the decision.

The Conservation Law Foundation, Toray Plastics and Polytop Corp. jointly filed the motion as part of their lawsuit that seeks to overturn a power-purchase agreement between Deepwater Wind and National Grid, Rhode Island’s dominant electric utility. Last August, the state Public Utilities Commission approved the contract for the sale of power from an offshore wind farm that Deepwater proposes near Block Island.

In their motion, Jerry Elmer, staff attorney for the CLF, and Michael McElroy, the lawyer for Toray and Polytop, argued that Justice Goldberg should be recused from the case because of the possible appearance of impartiality.

Justice Goldberg is married to Robert D. Goldberg, a prominent State House lobbyist. According to filings with the Secretary of State’s office, her husband’s law firm worked for Deepwater from Oct. 1, 2008, to July 31, 2009. The firm was paid $100,000 in total. A spokeswoman for Deepwater confirmed the duration of the firm’s work. Robert Goldberg has not worked for Deepwater subsequently.

Goldberg worked for Deepwater while the General Assembly crafted a law that requires National Grid to sign long-term contracts to buy renewable energy. Such contracts are crucial for offshore wind developers to attract financing.

Craig N. Berke, spokesman for the Supreme Court, said Justice Goldberg believes she does not need to recuse herself, because her husband worked only on past issues for Deepwater and not the legal matters at stake in the current case. He said that she has recused herself in past cases that touched on her husband’s work, including a lawsuit surrounding a marina expansion on Block Island.

“Judges have as much responsibility to serve as they do to recuse,” Berke said, quoting Justice Goldberg.

On Aug. 11, the Public Utilities Commission approved a controversial contract that would see National Grid pay up to 24.4 cents per kilowatt hour for power from the wind farm in the first year.

Four parties appealed the decision. The Conservation Law Foundation, a supporter of renewable energy, alleged that an amendment last year to state law that underpins the contract amounted to special-interest legislation. Toray and Polytop, manufacturers that are heavy users of electricity, objected because the high price of power in the contract would add millions of dollars to their energy bills. Then-Attorney General Patrick C. Lynch was also among the petitioners, opposing the contract because of the higher price of energy.

Lynch’s successor in office, Peter F. Kilmartin, a supporter of Deepwater’s plans, has subsequently pulled out of the case. On Feb. 21, the court granted a motion allowing his office to end its involvement in the lawsuit.

Kilmartin’s decision to pull out raised questions about whether the case would proceed. As part of the Feb. 21 order, the court instructed CLF, Toray and Polytop to prove that they have legal standing to appeal the PUC’s decision.

In response to the motion that sought the disqualification of Justice Goldberg, lawyers for National Grid, Deepwater and state elected leaders said that she and other members of the court “have consistently and properly identified and acted on potential conflicts …” They said they would defer to the court’s judgment.

In their motion, Elmer and McElroy did not question Justice Goldberg’s impartiality.

“Petitioners do not suggest that Justice Goldberg has acted improperly in any way,” the motion said. “Nor do petitioners question Justice Goldberg’s ability to act impartially. Nevertheless, with respect to a case that has already generated significant pretrial publicity (and controversy), a case in which former Governor Carcieri and the State’s legislative leaders have intervened … public confidence in the administration of justice could be adversely affected in the absence of disqualification.”