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Riggs v. Curran

United States Court of Appeals, First Circuit

July 10, 2017

BENJAMIN RIGGS; LAURENCE EHRHARDT; and RHODE ISLAND MANUFACTURERS ASSOCIATION, Plaintiffs, Appellants,
v.
MARGARET CURRAN, PAUL ROBERTI, and HERBERT DESIMONE, JR., in their official capacity as members of the Rhode Island Public Utilities Commission; NARRAGANSETT ELECTRIC COMPANY, INC., d/b/a NATIONAL GRID; and DEEPWATER WIND BLOCK ISLAND, LLC, Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]

          Andrew A. Rainer, with whom Brody, Hardoon, Perkins & Kesten, LLP, J. William Harsch, and J. William W. Harsch, Esq. & Associates were on brief, for appellants.

          Gerald J. Petros, with whom Adam M. Ramos and Hinckley, Allen & Snyder LLP were on brief, for appellee Deepwater Wind Block Island, LLC.

          Leo J. Wold, Assistant Attorney General, Department of Attorney General, was on brief, for appellees Curran, Roberti, and Desimone, Jr.

          Michael J. Fitzpatrick, with whom Day Pitney LLP was on brief, for appellee Narragansett Electric Company, Inc.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

         Benjamin Riggs, Laurence Ehrhardt, and the Rhode Island Manufacturers Association (collectively, "Plaintiffs") challenge the development of an offshore wind farm (the "Wind Farm") near Block Island, Rhode Island. The district court dismissed Plaintiffs' claims, ruling that they were barred by Rhode Island's three-year personal injury statute of limitations. We affirm.

         I. BACKGROUND

         A. Factual Background

         In 2009, the Narragansett Electric Company, d/b/a National Grid ("National Grid") entered into a power purchase agreement with Deepwater Wind Block Island, LLC ("Deepwater"), pursuant to a Rhode Island statute seeking to facilitate the development of a "newly developed renewable energy resources project of ten (10) megawatts or less" near Block Island. 2009 R.I. Pub. Laws ch. 53, § 1. Under the agreement, National Grid was to pass on the cost of constructing and operating the Wind Farm to mainland Rhode Island ratepayers, increasing their electricity rates for up to twenty years.

         On December 10, 2009, National Grid submitted the agreement for approval to the Rhode Island Public Utilities Commission (the "PUC"), which, on March 30, 2010, rejected the application because it was not commercially reasonable. The PUC found, among other things, that ratepayers would pay above-market rates for the entire twenty-year period and that the project offered poor value when measured against other renewable-energy projects.

         On June 30, 2010, National Grid submitted a slightly-revised power purchase agreement (the "PPA") after the Rhode Island General Assembly amended the statutory definition of "commercial reasonableness" applicable to the Wind Farm and directed the PUC to apply this amended standard in reviewing any future application. See 2010 R.I. Pub. Laws ch. 32, § 1 (codified at 39 R.I. Gen. Laws § 39-26.1-7). The PPA provided that "[t]he effectiveness of this Agreement . . . is conditioned upon and shall not become effective or binding until the receipt of the PPA Regulatory Approval, " meaning "the PUC's approval of this Agreement without material modification or conditions pursuant to [R.I. Gen. Laws § 39-26.1-7]." On August 11, 2010, the PUC granted the approval, in large part due to the newly-adopted standard. The PUC issued the order memorializing its decision on August 16, 2010 (the "PUC Order"), stating that the PPA "met the intent and requirements of the 2010 Amendments to R.I. Gen. Laws § 39-26.1-7."

         The PUC Order contained no conditions precedent, although the PPA's terms allowed Deepwater to subsequently terminate the approved and effective PPA if certain tax credit deadlines in the Internal Revenue Code were not extended, if Deepwater could not secure tax equity financing, or if Deepwater failed to timely receive additional approvals from other government entities, including:

1. Approval and a license from the Rhode Island Coastal Resources Management Council;
2. Permits under the federal Rivers and Harbors Act and the federal Clean Water Act from the U.S. Army ...

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