Anti-Wind Farm Group Sues R.I. Coastal Agency Over Revolution Wind Approval
October 6, 2023
Green Oceans, the Rhode Island citizens group that fiercely opposes offshore wind farms, is in the midst of a civil lawsuit it has filed against the state Coastal Resources Management Council (CRMC), claiming the council violated the constitution, state regulations, and its own responsibilities when it approved the Revolution Wind farm in May.
The lawsuit, being heard in Newport Superior Court, asks the court to vacate the CRMC’s decision, which, in effect, declared that the wind farm conforms to the state’s Ocean Special Area Management Plan (SAMP), provided that the developer, Revolution Wind LLC, takes some agreed-upon mitigating actions.
Attorneys for the CRMC fired back, stating that private citizens have no legal standing to bring such a suit, that Green Oceans has not suffered injury because of the CRMC action, that the complaint was filed past deadline, and that Green Oceans was taking the action without an attorney, which is not allowed.
The next scheduled action in the case will be a hearing on a motion to dismiss on Nov. 17 in Newport Superior Court.
The May vote by the CRMC was a fairly minor but necessary state-based approval and part of a long approval process that Revolution Wind LLC began more than two years ago. Final approval comes from the federal Bureau of Ocean Energy Management (BOEM). The developer proposes to build 65 wind turbines, two offshore substations, and miles of undersea cable on the Continental Shelf about 13 miles from Rhode Island, bringing 704 megawatts of clean electricity onshore. The project is part of a strong push by the federal and state administrations to replace energy from dirty fossil fuels with renewable energy.
The federal government released in July a final Environmental Impact Statement for Revolution Wind. That is nearly the last action that happens before final approval, which is given by BOEM, part of the U.S. Department of the Interior.
Green Oceans, initiated by Little Compton property owners and formed a little less than a year ago, describes itself as a “domestic nonprofit corporation in Rhode Island committed to protecting the ecology of the ocean and all of the life it sustains.”
The civil lawsuit and its various participants rolled out in stages over the summer, starting with a bare-bones, three-page complaint dated June 12 and signed only by Elizabeth Quattrocki Knight, a Little Compton homeowner and president of Green Oceans, but not a lawyer. As the summer proceeded, attorneys for the CRMC, Revolution Wind LLC, and Green Oceans jumped into the fray in successive waves.
The CRMC decision that the wind farm concurs with the ocean SAMP was finalized May 12 and the Green Oceans initial complaint was dated June 12 (although the CRMC says it was not submitted until June 20, too late for a 30-day deadline).
On July 10 Revolution Wind LLC filed a motion to intervene, which was later granted, and a motion to dismiss. Also on that date, three lawyers from the firm Hinckley Allen, based in Providence, joined the suit on behalf of Revolution Wind LLC.
Also on July 10, attorneys for Revolution Wind LLC fired off a response to the June 12 complaint, referring to it as “Green Oceans’ threadbare Complaint.”
On Aug. 30, attorneys from Heald & Foye, based in Providence, entered the suit on behalf of Green Oceans.
On Sept. 8, CRMC submitted a very short, “admit/deny,” response to Green Oceans’ initial complaint.
On Oct. 2, Green Oceans sought and received permission from the court to engage the services of a Massachusetts-based lawyer, Robert W. Stetson, a partner of Bernkopf Goodman, based in Boston. Allowing an out-of-state lawyer to join the case requires a procedure called a pro hac vice admission. Also on that date, Green Oceans was allowed by the court to file an amended complaint of far greater length and detail than the short June 12 complaint, signed by Stetson and the attorneys from Heald & Foye.
Rhode Island’s ocean SAMP was created more than a decade ago under the terms of the federal Coastal Zone Management Act. The SAMP gives the state the right and responsibility to protect and manage the coastal environment. It applies to the Revolution Wind project, which is in federal waters, because of the wind farm’s location and because its cables will make land in Rhode Island.
Green Oceans claims that the CRMC’s decision to approve Revolution Wind “violated the imperative” to protect the coastal environment, fishery stocks and fishing practices, cultural and historic sites, safe navigation, coastal tourism, recreation activities like sailing races and whale watching. The complaint says that Green Oceans’ membership includes “commercial and recreational fishermen, board members of historic properties with ocean views, homeowners with ocean views, whale watchers, recreational and competitive boaters and yachters, bird watchers and others…” Among the members are commercial fishermen and lobstermen who “depend on Coxes Ledge [an undersea fish habitat] and the diversity of species that it spawns for their livelihoods.”
The complaint further states that “Several Green Oceans members own ocean-front homes and will be able to view the Project [Revolution wind farm] from public and private vantage points …. Once constructed, the Project will be clearly visible from these members’ homes and frequently used beaches throughout the region and will diminish members’ real estate values and enjoyment of their homes and public and private beaches throughout Rhode Island.”
The complaint said the CRMC staff report that preceded the vote “…acknowledged the Project would result in significant long-term impacts on commercial and recreational fisheries.” It also quoted the staff report as saying, “… it is unclear whether there will be an overall net benefit to the Rhode Island marine economic sector from the Project or if there will be an overall loss.”
During intensive negotiations early this year, the CRMC and Ørsted, the wind farm developer, agreed on several conditions to ease the environmental impact of the project. The original plan for 100 turbines was reduced to 79 turbine foundation positions for a final total of 65 turbines installed. They agreed that, where practicable, turbines and offshore substations would be sited outside Cox’s Ledge and micro-sited [adjusted by small distances] to minimize effects on coastal resources. Also, Revolution Wind agreed to conduct a fisheries research and monitoring plan.
Revolution Wind agreed to a compensator mitigation plan for Rhode Island fishermen for a total of $12,933,333. This includes $12 million in direct payments for fishermen for lost income; $300,000 for a coastal community fund; $333,333 for a navigation enhancement and training program; and $300,000 for an impacts study.
The July 10 response by Revolution Wind attorneys to Green Oceans’ initial complaint presented four main points: the Coastal Zone Management Act does not provide a private right of action authorizing any such complaint or appeal by a private litigant; Green Oceans has not suffered a concrete and particularized injury-in-fact that distinguishes it from the general public; and Green Oceans failed to timely file the complaint. (Green Oceans says its initial complaint was mailed by certified mail on June 12, a month after the CRMC decision, even if it was docketed around June 20). Finally, Revolution Wind said, “Green Oceans seeks to proceed without an attorney representing it. This is impermissible under clear Rhode Island precedent.” The picture changed when Green Oceans obtained attorneys later in the summer.