Final Supreme Court submissions in wind farm case
2/12/11 — Last Friday groups objecting to the Block Island wind farm approval filed reply briefs in the state Supreme Court.
The Conservation Law Foundation and the industrial groups Toray Plastics and Polytop Corp. restate many of the arguments they made in their initial filings to the court. These are the last submissions before the Supreme Court schedules oral arguments, expected to take place in the spring.
Also on Friday new state Attorney General Peter Kilmartin followed through on his pledge to end his office’s role in the appeal, which was initiated by his predecessor Patrick Lynch.
Can’t customize outcome
CLF argues that when the three-member Public Utilities Commission unanimously rejected the wind farm power agreement reached between Deepwater Wind and National Grid in the spring of 2010, the proper venue for appeal was the state Supreme Court. Instead, wind farm supporters in the General Assembly amended the law that controls such contracts, calling upon the PUC to consider a modified contract; the law prescribed what factors the PUC should weigh when deliberating.
According to the CLF, by doing so “the legislative branch impermissibly sought to control directly the outcome of the PUC decision in the second [contract].”
Essentially, CLF argues that just because the Legislature and former governor didn’t like the PUC’s initial rejection, they were not allowed to rewrite the law to get a preferred decision.
The conservation group also argues that not only was such a course of action barred by “res judicata” — meaning a case cannot be reopened after a final decision — but by so doing the Legislature violated separation of powers.
Deepwater, joined by National Grid and the leaders of the General Assembly and the governor’s office, have argued that the PUC simply heard a second distinct contract.
But CLF says the second contract was almost identical to the first and, furthermore, the amended legislation disallowed a new contract. Per the law, the parties were “to enter into an amended power purchase agreement… on terms that are consistent with” the first contract (CLF’s italics). So, CLF argues, if it was indeed a new contract, then it would be in violation of the statute.
The brief points to previous Supreme Court rulings that said the Legislature could only change rules while a matter was still being considered, not retroactively. But, CLF points out, in this case the Legislature changed the wind farm law in response to the PUC rejection of the first wind farm contract. It says that Deepwater, et al, acknowledge this when they stated the amendments to the law were “an effort by the General Assembly to recalibrate the terms and conditions for the approval of a [PPA]….”
The CLF says that the amended law’s directive that the PUC give “substantial deference” to the opinions of the Economic Development Corporation or the Department of Environmental Management, was “yet another example of how the 2010 amendments attempt to dictate a result different from the PUC’s [denial of the first contract].”
CLF makes pains to say it recognizes that the legislative and executive branches of government establish public policy and require flexibility to “recalibrate” when necessary. Indeed, the environmental organization supported the first attempt to approve the wind farm.
But, according to the CLF, the course the two branches took to ensure the approval of the wind farm set a bad precedent.
“This court must determine whether the Legislature, by its enactment of the 2010 amendments, sought to undo the decision made by a distinct branch of the government (in this case, the quasi-judicial decision of the PUC), or otherwise attempted to directly control the execution of its enactment.”
The brief goes on to argue that if the court allows the approval to stand, it would be allowing a “legislative over-ride” that could undermine every decision made by a quasi-judicial public agency. “It will be opening a flood gate,” the brief states.
The industrial groups argue that the wind farm contract does not live up to the law in many respects: it is too expensive, does not provide for a cable to the island, does not provide savings to the ratepayers and, furthermore, it would still be possible to connect Block Island to a large utility scale wind farm without building the small six-turbine farm within three miles of the island.
The groups also point out that the amended law only allowed the PUC 45 days to consider the project (the timeline was accelerated so that the developer could take advantage of federal tax incentives). Normally the commission has up to nine months to weigh a contract.
Toray also takes exception to Deepwater/Grid’s assertion that “acceptance of Toray’s standards would assure that Rhode Island never enters the off shore wind industry.”
On the contrary, Toray argues that the Joint Development Agreement between the state and Deepwater “provides that if the Block Island [demonstration project] is discontinued and does not go forward, then… the utility-scale offshore wind project, must still go forward and would be required to include a cable from Block Island that is interconnected to the mainland.”
The groups fault the amended law for asking the PUC to consider only benefits — and not net benefits — to the state, saying it would lead to “an absurd result.” They offer the example that if a project created only one job but cost $1 billion, then it would meet the economic benefits test as laid out by the law.
In a footnote, the brief states that “no rational person or entity would properly interpret the term ‘benefits’ to mean anything other than net benefits after considering the costs needed to obtain the benefits. If a project costs three times more than the projected benefits, that project will be a detriment, not a benefit.”
The groups point out that the EDC testified that only $42 million of the projected $205 million construction price would be spent in Rhode Island, “yet Rhode Island ratepayers would be paying $370 to $390 million of above market electric costs to obtain those benefits.”
Furthermore, they state that “the 800 jobs set forth in the [contract] represent the optimistic estimate presented in the [Joint Development Agreement] for the utility-scale project, not the Block Island project,” which they say will result in only six permanent jobs.