Wind-farm power deal appeal heard

PROVIDENCE - An environmental group and two manufacturing companies argued before the Rhode Island Supreme Court on Wednesday that they have legal standing to challenge a key approval for an offshore wind farm proposed off Block Island.

An attorney for the Conservation Law Foundation and another representing Toray Plastics and Polytop Corp. urged the five justices to allow their petitions against a contract for the sale of power from the wind farm to proceed to a full hearing. If the court decides the parties do not have legal standing, the case will end and the power-purchase agreement between Deepwater Wind, a Providence-based developer, and National Grid, the state's dominant utility, will stand.

"If this court doesn't review the merits ... it will never happen," Michael R. McElroy, the lawyer for Toray and Polytop, said. "This is a huge project with huge impacts for the state, and that's why we are urging the court to take this case."

The power-purchase agreement is crucial to the development of the wind farm, which has the backing of Governor Chafee, General Assembly leaders, the state Economic Development Corporation and state unions. The supporters say the project would help wean Rhode Island off fossil fuels and stimulate the growth of a green economy.

A broad spectrum of opponents, however, has come out against the 20-year contract, approved by the Public Utilities Commission in August.

Polytop and Toray, both heavy users of electricity, object to the high price of power from the wind farm, which would be about three times what National Grid currently pays for electricity from conventional sources. Although the Conservation Law Foundation supports renewable energy, it opposed the statute that allowed National Grid and Deepwater to negotiate a deal, saying it amounted to special-interest legislation.

The issue of legal standing in the case arose after the Supreme Court in February granted a request from Attorney General Peter F. Kilmartin to drop out of the lawsuit. His predecessor in office, Patrick C. Lynch, filed the initial petition seeking to overturn the agreement, but Kilmartin supports the wind farm and, before winning election, said he would drop the case.

During the hearing, the Supreme Court justices repeatedly asked McElroy and Jerry Elmer, staff attorney for the Conservation Law Foundation, to explain how their clients would be affected by the power contract, and whether the effects would be greater than on other ratepayers.

McElroy said Toray and Polytop, which employ hundreds of people, would be saddled with millions of dollars in additional energy costs if the contract goes forward.

But, Justice Maureen McKenna Goldberg replied, "There are many entities in the state that buy a lot of electricity."

Gerald Petros, an attorney representing Deepwater and National Grid, said state leaders chose to pursue the development of offshore wind because they believe it is in the public interest. Toray and Polytop have no grounds to challenge what is believed to be for the public good, he said.

"They go and do a midnight change, and nobody can complain about it?" Justice Francis X. Flaherty said in response, referring to the special legislation the General Assembly passed that facilitated approval of the power-purchase agreement.

It was that legislative amendment, voted on at the end of the Assembly's session last June, that drew the objections of the Conservation Law Foundation.

"Every time renewable-energy projects are advanced through illegal methods, it creates a backlash against renewable energy," Elmer said.

Chief Justice Paul A. Suttell asked what would happen if the court rules against the statute and throws out the power-purchase agreement.

"You're attacking the policy," he said to Elmer. "If we reject this and agree with you, we're back to no policy."

A decision is expected within 60 days.