Lynch vows to continue wind farm law fight
01/08/11 - In one of his last acts as the state’s top law enforcement officer, outgoing attorney General Patrick Lynch asked a host of state organizations to join him in challenging the law that led to the Block Island wind farm approval. Though he officially left office Friday, Lynch has pledged to continue his effort as a private citizen.
On Friday, Lynch sent a letter to Common Cause of Rhode Island, Save the Bay, AARP of Rhode Island, the Rhode Island Statewide Coalition, Operation Clean Government and the League of Women Voters of Rhode Island asking them to file amicus briefs with the state Supreme Court against the wind farm law.
Not only is the law constitutionally suspect, says Lynch, but the resulting electricity prices would be a costly burden to the state.
The wind farm law “presents a real and present danger to the principle of Separation of Powers,” Lynch wrote. He has also asked former attorneys general Arlene Violet and James O’Neill to join him.
Newly elected Attorney General Peter Kilmartin, who was sworn in Tuesday, has pledged to end the state Supreme Court challenge of the law initiated by Lynch.
Also appealing the law are the Conservation Law Foundation (an earlier proponent of the Block Island wind farm) as well as industrial concerns Toray Plastics and Polytop Corp.
Both Lynch and CLF argue that the law, which forced the Public Utilities Commission to reconsider the Block Island wind farm project after first rejecting it as too expensive, ran afoul of the state constitution.
They say that former Governor Donald Carcieri and the General Assembly overstepped their legal bounds by passing a bill that essentially guaranteed approval of the power purchase agreement between Deepwater Wind and National Grid for the Block Island wind farm.
Lynch writes that the creation of the law was tantamount to reopening “a trial by means of legislation (inspired by the executive) for the sole benefit of the losing party. “This imbroglio is a gubernatorial/legislative attempt to single out Deepwater as the beneficiary of a new trial after a final court-like ruling.”
The proper appeal route was to the state Supreme Court — not a new law, Lynch and the CLF say.
“The Deepwater bill runs roughshod over the 2004 Separation of Powers Amendment and raises important constitutional questions that are far larger than this $400 million boondoggle which, as even Deepwater’s executives have testified, will create only six permanent jobs and will bring only a miniscule amount of wind power to Rhode Island,” Lynch writes.
Lynch points out that in his eight years as the attorney general, he has never challenged the constitutionality of any law passed by the General Assembly and signed by the governor. But he says this issue “is so important that none of us committed to fair, open government can check our credentials at the door... there is still a chance for the judiciary to stand as a bulwark against this gubernatorial invasion of judicial power.”
He also points to the costs.
“Just as devastating, [the wind farm contract] will force families and businesses of our Ocean State to buy grossly overpriced electricity for the next 20 years to specifically guarantee one company’s profits.”
According to Supreme Court spokesperson Craig Berke, Lynch would likely have to file as an intervener in order to be an active participant in the proceedings. The court would have to determine if he had sufficient standing.
And, if Lynch were allowed to intervene, he could append his original brief to any filings even if current Attorney General Kilmartin ends the state’s official appeal.
The Rhode Island Manufacturers Association, representing 300 companies and 30,000 workers, filed an amicus brief supporting the appeals just before Christmas. Like Toray and Polytop, the association points to high electricity costs stemming from the approved power contract. Electricity coming from the farm would cost a maximum of 24.4 cents per kilowatt-hour in the first year, with 3.5 percent escalations over the life of the 20-year contract, which will result in higher rates for National Grid customers. The industrial appellants say the law would result in much higher annual electricity costs for them; they also argue that the wind farm electricity price is not “commercially reasonable,” which is what the law called for.
In testimony before the PUC, experts said the above-market costs to state ratepayers could be upwards of $400 million for one tenth of one percent of the state’s demand. Current wholesale electricity cost is approximately 9 cents per kWh.
Others who have filed amicus briefs supporting the appeal include the Environmental Council of Rhode Island and the Ocean State Policy Research Institute.
Deepwater and its proponents have argued that the small wind farm proposed for within three miles of Block Island would not only stabilize and lower the island’s crippling electricity costs — currently in the 40 cents per kWh range (though the island led the nation at 65 cents per kWh in 2008) — but would also kick-start a new industry in the state, making Rhode Island the epicenter of the offshore wind industry on the east coast.
Deepwater recently filed an application with the Department of the Interior to install a 200-turbine, 1-gigawatt, wind farm in federal waters between Block Island and Martha’s Vineyard.
As far as the constitutional question, both National Grid and Deepwater have argued that the PUC considered an entirely different power purchase agreement in the second round — one that allowed for construction savings to be passed on to ratepayers if the project comes in under the expected $205 million construction cost.
Deepwater also considers the six-turbine Block Island wind farm to be a demonstration project — to show that the jacket construction method would work in the open ocean, and to demonstrate permitting and construction abilities. The smaller farm would help gain financing for the larger farm, which in turn would kick-start the industry, supporters say.
Meanwhile, reply briefs from Deepwater Wind, National Grid and interveners — the governor, speaker of the house and president of the senate — are expected to be filed on January 13.