BENJAMIN RIGGS; LAURENCE EHRHARDT; and RHODE ISLAND MANUFACTURERS ASSOCIATION, Plaintiffs, Appellants,
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.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. William E. Smith, U.S. District Judge]
A. Rainer, with whom Brody, Hardoon, Perkins & Kesten,
LLP, J. William Harsch, and J. William W. Harsch, Esq. &
Associates were on brief, for appellants.
J. Petros, with whom Adam M. Ramos and Hinckley, Allen &
Snyder LLP were on brief, for appellee Deepwater Wind Block
Wold, Assistant Attorney General, Department of Attorney
General, was on brief, for appellees Curran, Roberti, and
Michael J. Fitzpatrick, with whom Day Pitney LLP was on
brief, for appellee Narragansett Electric Company, Inc.
Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
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.
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
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."
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 ...