Will June 5 Whalerock hearing yield answers to questions?

Still a lot we don’t know

By Will Collette

The second episode of what looks like a long-running summer dramatic series here in Charlestown takes place on June 5 when the Zoning Board of Review (ZBR) resumes its deliberations on the application for a Special Use Permit from the unpopular Whalerock industrial wind farm project owned by developer Larry LeBlanc. Click here to read my coverage of the opening hearing.

The June 5 hearing will hear a continuation of Whalerock’s presentation on its application for the permit. The complexity of the project, the large crowd, the repeated objections and counter-objections from the lawyers and questions from the ZBR members made the May 22^nd hearing slow going, so it will take at least one more night for Whalerock to make its case and for the opponents to begin firing back.

Lots of questions were left unanswered after the May 22 opener. Indeed, there are some questions that require answers that haven’t even been asked yet. I think most people who have participated in, or followed this case, have their own list of those questions. Here are mine.

Gorham at earlier 
Council meeting

What is the Town of Charlestown’s standing in these proceedings?

Whalerock lawyer Nick Gorham raised repeated objections to the participation of not just Town Solicitor Peter Ruggiero but also new, $50,000 Special Counsel John O. Mancini.

Gorham not only objected to Mancini’s efforts to highjack Whalerock’s presentation by “cross-examining” Whalerock’s witnesses, but noted that the decision by RI Superior Court Judge Kristin Rodgers was that Charlestown lacked standing to participate in the case. Click here for the full decision.

Why doesn’t ZBR Chair Mike Rzewuski rule not only on Gorham’s objections about the town’s standing but on all the other objections all three lawyers have raised?

I understand that the ZBR is not a court but it does serve a quasi-judicial role. Rzewuski responded to each objection by simply saying “Noted” or “Duly Noted” and allowed the objected-to conduct to continue. I wish he would consult with the town lawyer Bob Craven who is assigned to help the ZBR - Bob has the kind of experience that could help Mike make good rulings.

I understand that some objections are raised simply to try to throw the opposing counsel off their stride; other objections are simply for the record. But Gorham's objection that Judge Rodgers ruled the town had no standing in the Whalerock case seems to deserve a ruling from the chair since that would affect whether or not the town has the right to present a case or cross-examine witnesses.

Who does Charlestown’s $50,000 Special Counsel John O. Mancini actually represent?

Many questions center on new
$50,000 Charlestown Special
Counsel John O. Mancini

Town Solicitor Peter Ruggiero is participating as Charlestown’s longtime official lawyer. Newly hired Mancini introduced himself as also representing the town but also some unidentified private citizens that he would only identify as abutters.

Legal observers tell me they have never seen this before – that Mancini should, at minimum, identify who those unidentified abutters are, if only to establish their standing in the case.

ZBR Chair Rzewuski should insist on that identification for the hearing’s record.

If Charlestown is paying for Mancini to represent private citizens, that sets an interesting precedent that may be of interest to others in town, such as the neighbors of the infamous Copar quarry who have lots of burdensome legal bills. The town is officially opposed to Copar and pledged to aid those neighbors. Should they have their lawyer send the town his bills?

I just received a copy of Mancini’s contract with Charlestown (click here). It makes no mention of these abutters, though it does describe how Mancini will be paid more than even Charlestown’s famed Indian fighter Joe Larisa who handles the town’s on-going war with the Narragansett Indian Tribe.

Larisa charges Charlestown a regular monthly retainer of $2050 plus $130 an hour if he does anything, plus expenses.

Mancini is charging Charlestown $275 an hour for his time, plus between $200-225 for his colleagues and between $110-125 for paralegal staff. And he is charging a flat 6% of this sum to coverage his overhead.

When an attorney represents two different clients in the same legal matter, the lawyer must make sure that the interests of his clients do not conflict. I saw nothing in Mancini’s contract that addresses this potential conflict of interest.

Why did it take Town Solicitor Peter Ruggiero more than two years to uncover what he claims is grounds for Charlestown to reverse the court rulings against the town’s standing?

Has Peter found an answer to the
standing problem yet?

Charlestown’s anti-Whalerock lawsuits have been thrown out of court twice. Once by Judge Judith Savage who said the town’s case was so poorly presented that she couldn’t figure out exactly who the town was representing and whether they had standing.

The second suit was thrown out because Ruggiero failed to prove the town had standing.

After Nick Gorham’s first objection that Charlestown lacked standing to participate in the case – based on two judges’ say-do – Ruggiero claimed he had found some records of nearby town owned properties that gave Charlestown abutter standing. Really? After more than two years? Ruggiero said he was going back to court to try to get Judge Rodgers’ decision reversed. I wonder how that turned out.

Is Whalerock required to demonstrate with 100% certainty that there will be no health effects from its turbine project?

Toward the end of the May 22 hearing, ZBR Chair Mike Rzewuski made it plain that he intended to apply a zero-risk standard to the Whalerock project. He demanded that expert witness Daniel Mendelsohn of  Applied Science Associates provide a yes or no answer to whether he could give a 100% guarantee of safety. 

Mendelsohn said no and that was to his credit because nobody could honestly give a 100% guarantee to anything – even death and taxes, or the sun coming up tomorrow.

Anyone who offers a 100% guarantee that nothing can go wrong is a liar. Anyone who expects to get a 100% guarantee is, at best, naive.

I’ve worked with groups fighting lots of different types of unpopular facilities. These include toxic waste sites, garbage dumps, chemical plants, incinerators, smelters, cement plants, lagoons for liquid pig manure storage, coal mines, oil and gas drilling, nuclear waste storage and so on. Regulators tend to analyze the merits of such projects through the prism of risk-benefit analysis and ultimately try to move to some consensus on what constitutes “acceptable risk.”

That’s always a highly debatable approach, as what is “acceptable” is in the eye of the beholder. If you’re a down-winder from a nuclear power plant (as we are from the Millstone nuclear plant only 20 miles away) or chemical factory, you may take a different view of acceptable risk than a company shareholder. 

Rzewuski’s demand for 100% assurance of no-risk would seem to lead directly to rejecting the Whalerock application - or for that matter, any application where the applicant fails to make a 100% no-risk guarantee. 

However, the unusual choice of that extreme hurdle almost certainly creates another basis for a Whalerock appeal, should the ZBR reject the application.

These questions, above, mostly involve procedural concerns about the town making sure it handles the Whalerock case properly to avoid yet another embarrassing loss in court.

Listening to the Whalerock presentation raised a number of substantive questions in my mind about the viability of the Whalerock project. Starting with…

How is Whalerock going to come up with $8 million to actually build the turbines if, as Whalerock manager Michael Carlino testified, they will not be using any government funding?

Who wants to buy a piece of the rock?

Sure, it’s really Whalerock’s problem – not the ZBR’s – to figure out the financing. But the ability of Whalerock to find the money to properly construct, then maintain and then later to de-commission and dismantle the turbines over the course of perhaps 20 or more years is pretty relevant to their application.

From the sales-leaseback agreement filed with Charlestown on December 31, 2012, we know that LeBlanc already has a $500,000 mortgage on the property. We also know that very little money actually changed hands between LeBlanc and his Connecticut partner James Barrows to execute the agreement.

Federal and state grants, loans, tax breaks and other types of subsidies have largely dried up since Whalerock was first conceived in 2009. 

Given the wind speed studies showing the marginal wind power needed to make Whalerock viable, I just don’t see how they will be able to raise the money.

I think Whalerock needs to squarely take on this question and answer it.

Whalerock dodged the financial question on May 22 when lawyer Nick Gorham said that it was impossible to project likely revenue until they negotiate with National Grid for a contract to sell them energy. National Grid won’t start the negotiations until Whalerock has all its regulatory approvals. 

Whether or not it's germane to the application, I’m also curious to know what is entailed in connecting Whalerock to National Grid’s grid…will they need to run transmission lines through public or private property?

What exactly is the future of the site?

LeBlanc’s leaseback agreement with James Barrows calls for LeBlanc to hold the right to operate the turbines on the property for 25 years. The expected life expectancy of the conventional Vestas gearbox turbine they propose is 20 years (or less). While gearbox turbines are the industry standard at the moment, they are also problematic and more associated with failures and problems than other forms of wind energy generators, such as direct drive. Gearbox-driven turbines that are supposed to last 20 years are now breaking down at the 7 to 10 year mark.

Abandoned turbines: bad for Charlestown, bad for the wind energy industry

Presuming LeBlanc overcomes every legal hurdle and manages to raise the money needed to build, those turbines are going to be a major feature on the Charlestown skyline. They will need regular maintenance and, ultimately, they will fail, wear out or become obsolete.

Then what? I would like to hear Whalerock address what they intend to do with those turbines when their useful life is over. For many types of controversial environmental projects (e.g. waste sites, coal mines), regulators require post-closure plans and reclamation bonding to deal with those eventualities.

There were snickers from the audience when ZBR chair Rzewuski teased the admission from Whalerock project manager Mike Carlino that Whalerock hoped to make money. Ha, ha. Actually, I’m more concerned, if Whalerock does get built, that it won’t make money and will be abandoned, leaving us with two huge derelict turbines looming over Route One.

What if LeBlanc proposed a different technology?

Before the hearings began, Whalerock lawyer Nick Gorham promised that his client would be presenting some new and interesting aspects to the Whalerock project that he predicted would please the neighbors. 

So far, I haven’t seen any of that.

To me, that promise implied that LeBlanc would offer to use a different, less problematic technology. Perhaps something smaller, more efficient and less troublesome than a couple of huge conventional gearbox turbines.

Over these past couple of years, I’ve been watching the tidal wave of innovative wind generator designs – and reported on many of them in Progressive Charlestown. Many of them resolve issues like the environmental effects that have so many of the neighbors spooked. Others drastically cut the risk of slicing and dicing our local bald eagles and array of raptors, bats and migrating birds.

These alternative designs use small-bladed vertical axes, funnels, unbladed designs, etc. with a lot less of a visual impact than the 410-foot tall blades currently proposed.

I know that at this late stage in the game, it’s more an exercise in “What If?” to think about switching technologies, but for Charlestown’s future, I think we need to rethink our seemingly total aversion to wind energy. 

Whalerock may be the wrong answer, but asking how we embrace green energy alternatives is the right question.