Judge denies reconsideration motion in Vineyard Wind dispute

A Suffolk Superior Court judge has declined to lift an earlier court order that prevents GE Renewables US LLC from ending its contracts on the Vineyard Wind offshore project, while also denying a bid to stay the litigation and move the matter into arbitration.

In a May 29 decision, Judge Peter B. Krupp denied two requests from GE Renewables, the company responsible for supplying, installing and serving the project’s 62 turbines.

GE had asked the court to reconsider an April injunction that prevented the company from ending its contracts with Vineyard Wind. The company also wanted the dispute moved out of court and into arbitration instead. Krupp rejected both requests.

With all 62 turbines now in place, Vineyard Wind 1 is looking to begin full commercial operation and begin delivering consistent electricity into the New England power grid. Power comes ashore by way of transmission cables that land at Covell Beach in Centerville and connect to a substation in Hyannis.

Vineyard Wind says the transition to an operating windfarm depends heavily on GE continuing its work. That is because the turbines require GE’s proprietary technology, specialized servicing, and ongoing maintenance — all of which Vineyard Wind says no other contractor can provide.

At the heart of the dispute is Vineyard Wind’s argument that losing GE’s expertise now could seriously damage the 806-megawatt project, which is located south of Martha’s Vineyard and southwest of Nantucket.

Krupp said nothing that GE presented changed his earlier conclusions.

“It does not change the fact that the project requires GER’s expertise and proprietary know-how to bring the turbines up to operational capacity,” the judge wrote.

GE argued that events that happened after the court’s April 17 injunction showed Vineyard Wind, a joint venture of Avangrid Renewables and Copenhagen Infrastructure Partners, was no longer facing the serious risks it had claimed.

Among those developments was Vineyard Wind’s announcement that it had reached a commercial operation date — a key milestone — triggering its power purchase agreements. Gov. Maura T. Healey also announced the milestone publicly, and Vineyard Wind’s parent company, Iberdrola, described the wind farm as essentially completed during an earnings call.

But Krupp said the fact that Vineyard Wind declared a particular milestone under its power purchase agreements “does not mean that the (wind turbine generators) are functioning at capacity, as designed, or without substantial need for repair and improvement; or that GER does not have specialized expertise needed to bring about timely repair and improvement to Vineyard Wind’s operational capacity.”

The judge wrote that GE still has more than 200 employees and subcontractors working on the project “to correct defects in installation and improve performance of the wind turbine generators.”

He also said Vineyard Wind remains vulnerable if the contractor leaves. In his earlier ruling, he found the project is “at a critical phase” and that GE’s departure “would set the project back immeasurably and threaten Vineyard Wind’s financing.”

He also wrote that the idea that Vineyard Wind could hire one or more contractors to “troubleshoot and modify GER’s proprietary design without GER’s specialized knowledge is fanciful.”

Krupp also pointed out the broader importance of the project. He said the attention Vineyard Wind’s power purchase agreement activation highlighted the state’s interest in seeing the wind farm operate fully and successfully.

“If anything, the fact that Vineyard Wind’s declaration of the commercial operation date under the power purchase agreements got the attention of Gov. Healey and resulted in her public statement underscores the important public interest there is in the project coming online,” Krupp wrote.

GE also argued that the dispute belongs in arbitration rather than a courtroom because the contracts contain an arbitration clause. Krupp agreed that the contracts generally require disputes to go through a lengthy process that can end in arbitration; however, he said the contracts contain an exception allowing either company to seek court intervention when “urgent” issues arise.

He said Vineyard Wind faced an urgent situation because GE was attempting to terminate its involvement in a project that still relies on the company’s expertise.

The 10-page decision is Vineyard Wind 1, LLC v. GE Renewables US LLC, Lawyers Weekly No. 09-049-26.

Vineyard Wind declined to comment on the decision.

A GE Vernova spokesperson stated that when the company knew the project was “substantially complete,” reaching commercial operation and activating its power purchase agreement, “we issued our contractual right to terminate the project agreements for non-payment.” The company is “pleased that this project will generate affordable and reliable power for residents of Massachusetts over the long term.”

“We are proud of successfully completing the installation of all 62 wind turbines at Vineyard, and of our team and their work to execute this project,” the spokesman added in a June 3 emailed statement. “We look forward to next steps.”