Solar developer’s legal wrangling draws praise, criticism | Thomas Melone most recently made headlines by suing to overturn approvals for the Vineyard Wind offshore project. Critics say his company’s litigious approach is doing harm to the industry’s reputation in New England. | By Lisa Prevost | Energy News Network | August 16, 2021 | energynews.us
Thomas Melone is president of a Connecticut solar company. He is also a lawyer. And between the two, observers say, he is something of an enigma.
As head of Allco Renewable Energy, Melone says his company’s corporate mission is to combat the devastating impacts of climate change. But he’s also filed multiple lawsuits challenging several states’ clean energy programs.
He most recently made news by suing in federal court to have approvals overturned for Vineyard Wind – poised to be the country’s first utility-scale offshore wind farm – citing, among other things, potential damage to the commercial fishing industry.
And while he views it as his job to challenge laws or policies that restrict solar development, the company’s litigious track record is doing harm to the industry’s reputation, some critics say. The Vermont Department of Public Service once accused Melone of utilizing “a scorched earth approach” in a proceeding before the Public Utility Commission.
“He is giving solar a really bad name; he’s turning people against solar,” said Annette Smith. In her role as executive director for Vermonters for a Clean Environment, Smith has challenged many solar projects herself and been critical of Melone’s actions. “You’ve got to work with people. He’s coming in and slugging and making enemies. It is a very strange business model.”
Melone doesn’t often win in court, but that doesn’t seem to deter him. A seasoned lawyer who previously worked in tax law and structured finance, Melone says the company is merely exercising its rights, and is on a mission to help decarbonize the energy sector as quickly as possible. Expanding solar use, he says, is the best way to do that.
“Putting renewable energy on land creates more American jobs, does not put commercial fisheries out of business, is more secure from an electrical grid perspective, and does not come with all the environmental risks of offshore wind,” he said in an email exchange.
Prior to opposing Vineyard Wind (and the abandoned Cape Wind project before that), however, Melone’s company made an unsuccessful bid of its own to develop the country’s first offshore wind farm off of Rhode Island.
Melone has also filed a petition objecting to the 650-megawatt natural gas plant planned for Killingly, Connecticut. And he sued the U.S. Forest Service over its approvals of the now-dead Northern Pass transmission line that was proposed to bring hydroelectric power to New England from Quebec.
More recently, he gained intervenor status in a proceeding before the Connecticut Siting Council for approval of a 9.66-megawatt natural gas-powered fuel cell power plant in the city of Bridgeport. In filings to the council, Melone argues the fuel cell will further deteriorate air quality in the city’s South End, an area with high asthma rates, and will serve to displace “true renewable energy projects” like solar. As part of the discovery process, he presented the power plant’s developer, NuPower, with 15 pages of detailed questions.
For Joe Provey, a homeowner who is intervening on behalf of neighborhood residents who see the project as a detriment, the sudden emergence of a legally skilled ally in the proceeding came as a pleasant surprise.
While he knows Melone has “his own agenda,” Provey said, “I kind of perceive him as a white knight.”
Melone, 63, is a wealthy man. He has multiple homes, including one on the island of Martha’s Vineyard, where he also funded the development of a performing arts and studio compound. In his unsuccessful 2010 appeal of Cape Wind, which was to be built in Nantucket Sound, he argued that the project would negatively impact the viewscape from his Edgartown summer home and reduce his property value.
Before pursuing solar development, Melone arranged tax-based financing for such equipment as railcars, aircraft, and power plants. He says he got into the solar business after his company began advising SunEdison on its solar financings. His first project was in Indiana in 2012. Allco and its subsidiaries now have 35 projects in operation in Connecticut, Massachusetts, Vermont, New Jersey, Georgia, California, Indiana and Minnesota.
Melone acknowledges the company’s previous interest in developing offshore wind in Rhode Island.
After then-Gov. Donald Carcieri declared his administration’s commitment to getting an offshore wind farm up and running in 2006, Allco tried to get a jump on the game by right away asking the state for a permit to install equipment that would allow it to collect wind data. But the administration wanted to cast a wider net and, in 2008, put the project out to bid.
Allco’s proposal was one of seven. The project went to Deepwater Wind, and is now the five-turbine Block Island Wind Farm.
“We were willing to invest in exploring whether wind power was appropriate in those locations,” Melone said. But because the company never received a permit for the data collection devices, he said, it never “got to the point of being willing to move ahead with actually building a wind farm.”
When it comes to his challenge to Vineyard Wind, Melone says he’s only “asking for the government to do its job and take a hard look at the consequences of the project and the facts.”
The lawsuit in U.S. District Court targets five federal agencies, including the Bureau of Ocean Energy Management. It cites 18 counts of their alleged failures to follow federal law, including the National Environmental Protection Act.
Among the allegations are that federal regulators failed to evaluate the wind turbines’ ability to withstand a Category 3-or-greater hurricane. Should the turbines be destroyed in a severe storm, the release of oil and other contaminants would destroy fishing grounds and endangered species, which include the North Atlantic right whale and the piping plover, Melone argues.
Approval of the project will also impact Melone’s enjoyment of the Sound as a boater, according to the complaint, and reduce Allco’s solar development opportunities, as “offshore wind energy producers intend to decimate U.S. onshore renewable energy producers in the northeastern United States.”
“If Allco is successful,” Melone said, “the government will need to conduct the correct robust review of the project.”
Hana V. Vizcarra, a staff attorney at the Harvard Law School Environmental and Energy Law Program, said Melone seems to be “throwing up anything and everything he can” in his lengthy complaint. But she thinks he will likely run into trouble persuading the court he has standing to sue as head of Allco.
“As courts have become more conservative, they tend to take a narrower view as to who has standing to make environmental claims,” Vizcarra said. “The desire to eliminate competition from other renewable sources doesn’t give you standing.”
However, she noted that many more lawsuits no doubt lie ahead for these major wind projects.
“Regardless of the validity of these claims or the likelihood of success, both the administration and the offshore wind producers have to be well-prepared for that,” Vizcarra said.
A Vineyard Wind spokesperson said the company does not comment on pending litigation.
A spokesperson for G.E. Renewable Energy, the maker of the Haliade-X wind turbines to be used in the project, also declined comment, other than to point out that the technology recently received certification verifying that it can withstand typhoon-level winds. He did not specify what that means in terms of maximum wind speeds.
Connecticut regulators are very familiar with Melone’s name. Allco sued the state in federal court three times between 2013 and 2016, each time challenging the state’s renewable energy procurement program. After the claims were dismissed, Allco appealed to no avail.
Ari Peskoe, director of the electricity law initiative at Harvard Law, tracks challenges to state clean energy policy on his State Power Project website. Allco has filed so many such challenges Peskoe considers the company an “all-star” on the site.
In the case that began the series of Connecticut suits, Melone was essentially “a disappointed bidder” who hadn’t been selected by the Department of Energy and Environmental Protection in a request for proposals for renewable energy projects, Peskoe said.
“So he decided he was going to try to invalidate the whole process,” he said.
Robert Klee, then the commissioner of the state Department of Energy and Environmental Protection, was the named defendant in the cases. Now a lecturer at the Yale School of the Environment and Yale Law School, Klee declined to comment.
Melone has also had some successes in his state policy challenges, perhaps most notably in California. In 2017, after several years of litigation, the U.S. District Court in the Northern District of California agreed with Allco that a state renewable energy procurement program was in violation of the Public Utility Regulatory Policies Act, known as PURPA. He won a similar challenge in Massachusetts.
Melone’s legal battles have perhaps been fought most fiercely in Vermont, where Smith, the environmental activist, says he has filed about a dozen appeals in state Supreme Court over various issues.
Most current litigation is related to his years-long efforts to develop two solar projects totaling 4 megawatts on 27 acres of forested land in Bennington. Homeowners in a neighboring residential development have opposed the plans. And there have been lengthy quarrels as to whether the two projects are essentially one, which would violate the 2.2-megawatt cap in the program under which Melone obtained his power contracts.
The project proposals have bounced back and forth between the Public Utilities Commission and the courts, as Melone has repeatedly challenged their denials.
Last year, he filed a federal lawsuit against utility commissioners and Gov. Phil Scott, alleging that commissioners unfairly bowed to pressure from lawmakers and neighborhood opponents to reject his projects. In a response, the state attorney general’s office said the complaint evinces the company’s “disgruntlement with being subject to Vermont laws.” The case was dismissed in March.
Melone has also sued a social media critic in Bennington for defamation.
Regulators recently issued an injunction after concluding that Allco and its affiliates had conducted some unauthorized clearing on the Bennington site. In a brief supporting the injunction, an attorney for the state Agency of Natural Resources said that rare plants and mature trees had been destroyed by the clearing.
“The developer has persistently and willfully refused to abide by the commission’s requirements in these proceedings,” the attorney wrote. “The developer’s actions have imposed unnecessary and inappropriate burdens on the parties and their counsel in dealing with and responding to the developer’s unauthorized, unacceptable and persistent conduct.”
Melone has appealed the injunction.
He denies that he is employing a “scorched earth” approach to solar development in Vermont. The parties that use the term are leveling “baseless attacks” rather than addressing the substance of the issues, he says.
Acknowledging that most solar developers can’t afford such sustained legal filings, Melone says it is an advantage to be able to handle cases mostly in-house. But he also believes, like Provey, that there is a white knight aspect to his prodigious legal activities.
“If I wasn’t an attorney,” he said, “we wouldn’t be in a position to help the residents in Bridgeport’s environmental justice community stop the fuel cell plant.” As if his plate wasn’t full enough, he’s got another fuel cell project in his sights. FuelCell Energy just filed a petition for an 8.4-megawatt facility in Hartford, Connecticut. Melone says he fully expects Allco will intervene.
URL to article: https://www.wind-watch.org/news/2021/08/16/new-england-solar-developers-legal-wrangling-draws-praise-criticism/