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Wind contract critics argue their standing

The Conservation Law Foundation and industrial concerns Toray Plastics and Polytop. Corp. argued before the state Supreme Court Wednesday that they had legal standing to appeal the approval of the Block Island wind farm.

The court ordered the three entities to demonstrate their standing after new Attorney General Peter Kilmartin opted out of the appeal that had been instigated by his predecessor, Patrick Lynch.

According to published reports, Toray and Polytop attorney Michael McElroy argued Wednesday that an appeal was required because the court must determine if the price reached in the wind farm power contract was “commercially reasonable.”

The contract would call upon National Grid to purchase electricity generated by the wind farm – likely six turbines situated within three miles of Block Island – for no more than 24.4 cents per-kilowatt-hour in the first year, with 3.5-percent escalations annually for the life of the 20-year contract. It could lead to grid customers having to pay up to $400 million in above-market costs over that two-decade period. Current wholesale electricity costs in the 9-cent-per-kWh range.

McElroy said his clients would be forced to pay millions more in electricity costs as a result of the contract.

Jerry Elmer, attorney for the Conservation Law Foundation – an organization that supports renewable energy – argued the process that led to the contract set a woeful precedent for future renewable energy production in the state and was legally suspect.

After the three-member state Public Utilities Commission rejected a first power contract in the spring of 2010, wind farm supporters in the General Assembly and in former Gov. Don Carcieri’s office worked to successfully amend the long-term contracting law that forced the PUC to reconsider a slightly modified contract. The commission approved it in a 2-1 vote in August.

CLF has argued that the Legislative branch overstepped its legal authority by essentially forcing a quasi-judicial regulator to revisit a decision wind farm supporters didn’t like.

According to the Providence Journal, Justice Francis X. Flaherty appeared to agree the process deserved some scrutiny. “They [the General Assembly] go and do a midnight change, and nobody can complain about it?” Flaherty is quoted as saying.

And, when an attorney for the General Assembly and governor’s office responded that the process was unlikely to be repeated, Flaherty shot back, “It seems to me just the opposite,” he said. “If it works they are going to keep doing it until someone stops them,” according to the Providence Business News.

Among those asking questions from the dais was Justice Maureen McKenna Goldberg, wife of attorney Robert Goldberg who has worked as a lobbyist for Deepwater in the past.

The court has said that if it finds CLF and the others do indeed have standing, oral arguments for the larger appeal would be scheduled for May 20.