After the state PUC struck a 20-year deal for a five to eight turbine wind farm three miles off the coast of Block Island last year, RI companies are asking the state Supreme Court to step in and determine what is in the public’s best interest.
A round-table discussion of lawyers, professors and public policy critics on Tuesday centered on the role of the state Supreme Court in scrutinizing a deal to purchase power from a proposed multi-turbine wind farm off the coast of Block Island.
After the state Public Utilities Commission rubberstamped approval on a 20-year deal between National Grid, Rhode Island’s largest energy provider, and Deepwater Wind based on recommendations by the state Economic Development Corporation, local industrial companies and a Providence-based nonpartisan nongovernmental organization, Ocean State Policy Research Institute, are today questioning the constitutionality of the agreement.
For major energy consumers like the Quonset-based Toray Plastics America, Inc. and Polytop Corp. in Slatersville, National Grid’s decision to purchase power from the eco-friendly Deepwater Wind development at a rate more than three times the current price per kilowatt hour, will, company executives say, cost millions.
Shigeru Osada, senior vice president to Toray Plastics, said his company does not directly buy energy from National Grid, but does utilize its power network for delivery from a third-party energy provider. Legislation passed last year by the state General Assembly will enable National Grid to spread the increased costs associated with buying energy from Deepwater Wind throughout the grid to all energy consumers who utilize its carrying network in the state. The justification by Congress for charging companies like Toray, who do not buy directly from National Grid, is that all residents of the state will benefit from the economic and environmental benefits associated with the project.
“This is going to have big impact on what jobs we can create and keep within the state,” Osada said on Tuesday. It is estimated that over the life of the 20-year contract Toray could incur up to $7.3 million in additional energy costs.
According to its website, the PUC operates as a quasi-judicial agency with a three-member commission which has “jurisdiction, powers, and duties to implement and enforce… and to hold investigations and hearings involving the rates, tariffs, tolls, and charges, and the sufficiency and reasonableness of facilities and accommodations… of electric distribution…”
The site goes on to claim the commission’s control over the location of major energy facilities – like the proposed Deepwater Wind development. The authority of this commission is made all the more resolute wherein appeals are heard only through petitions for a writ of certiorari to the state Supreme Court.
Toray Plastics and Polytop Corp. were before the state Supreme Court Wednesday, seeking to have the Deepwater contract overturned.
Last month the state Supreme Court dismissed a similar claim filed by the Conservation Law Foundation that argued the deal, which was originally rejected by the PUV but later enabled by legislation passed in 2009 that required National Grid to secure long-term contracts with renewable energy sources, was unfair and a gross violation of separation of powers.
“Now we are the only ones left,” Osada said. Former Attorney General Patrick C. Lynch also refuted the deal, but a suit by the office was dropped after Attorney General Peter F. Kilmartin took office in January.
According Spokeswoman Amy Kempe, Kilmartin is a longtime proponent of the project, which he believes is in the interest of public betterment in that it will retain jobs and promote green energy initiatives in the state.
At yesterday’s discussion at Ocean State Policy Research Institute headquarters, Osada and others debated the judicial review process and the court’s place in evaluating the PUC’s approval of the National Grid-Deepwater deal.
“On the surface we are all in favor of environmental conservation and new forms of energy, but sometimes it is easy to fall in line without really looking at the history of an issue and what is really going on,” said Dr. Patrick Garry, a professor of law at the University of South Dakota during Tuesday’s meeting.
Garry explained the judicial and legislative branches employ a series of checks and balances but admitted that once legislation is handed over to administrative agencies, as was done with the 2009 law requiring National Grid to seek contracts with renewable energy developers, decisions can be wrought with bad decision-making.
The process of judicial review and separation of the legislative and judicial branches becomes a murky territory, according to Garry, but it can sometimes be justified in cases like the Deepwater agreement when decisions made by administrative agencies have conflicting impacts on the general public.
“The Hard Look (Doctrine) is really I think inherent, in some ways we have to have Hard Look because what we have done as a society is to give the administrative (agencies) so much more power, Congress has willingly done that,” said Garry. “If agencies have that much power and they do as much as they do… well then we almost have to have some kind of check on them and where is the check? Congress is not the check because Congress has already given up its role as a check, Congress by just passing all its power to the agencies, has given up its check. We cannot count on the president to be a check because the president controls the administrative branch and will use the administrative branch for the executive’s own purposes. So who is really left to control the actions of the administrative state? It really comes down the judiciary.”
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