Judge Dismisses Suit by Anti-Wind Group That Sought to Block R.I.’s Approval of Revolution Wind Project

Wind NIMBY case thrown out

By Mary Lhowe / ecoRI News contributor

Even as the Revolution Wind project, approved by the state and federal governments, begins the work that will end with 65 turbines installed on the ocean floor southeast of Rhode Island, the project has survived a Hail Mary lawsuit by a citizens group bent on stopping offshore wind development.

A Newport County Superior Court judge ruled April 5 against Green Oceans in the group’s civil lawsuit, which sought to overturn a May 2023 vote by the Coastal Resources Management Council. That CRMC vote asserted that Revolution Wind met the requirements of the state’s Ocean Special Area Management Plan.

The wind project got its final federal approval in fall 2023 and land-based construction is now underway, with turbine installation projected to begin this year.

Green Oceans, a Rhode Island-based group that opposes offshore wind, filed suit against CRMC last June, claiming the council violated the state Constitution, state regulations, and its own responsibilities when it approved the Revolution Wind project on May 12, 2023.

Judge Richard Raspallo dismissed the civil suit on two main grounds. The first was that the Green Oceans appeal was filed too late, on June 20, 2023, well past the 30-day deadline following CRMC’s May 12 vote. The second was that Green Oceans was not a formal intervenor or party to the CRMC decision, so it had no standing to sue, and also no standing to receive an extension of the appeal filing deadline.

Raspallo described the efforts that Green Oceans’ president made on June 12, 2023, to get the appeal filed quickly. She was told by an unnamed lawyer and a court official that submitting the appeal by mail was allowable. She mailed the appeal June 12 — a month after the CRMC vote — but it was not docketed in the court until eight days later.

Green Oceans claimed it should have received a 30-day extension of the original appeal deadline because it had not received formal notice of the CRMC decision after May 12. The judge said Green Oceans had no right to receive a notification from CRMC because it was not a formal party to the agency’s action, even though the group had submitted written objections and testified before the CRMC board, as any member of the public may do.

“Green Oceans does not get wider latitude than what is allowed by law,” Raspallo said. “The litigant is responsible to meet deadlines.”

On Dec. 5 in Newport County Superior Court, lawyers representing CRMC and Revolution Wind, in its role as an intervenor in the case, presented their arguments for the court to dismiss the Green Oceans civil lawsuit.  

They asserted that Green Oceans, a limited liability corporation, did not have any legal standing in the case; that existing law did not even allow an appeal of the CRMC vote by any group or individual; and that the Green Oceans appeal missed the appeal deadline.

Speaking for Revolution Wind, Robin Main, a partner in the Hinkley Allen law firm, introduced the Coastal Zone Management Act, a 50-year-old law that requires that any federal action affecting coastlines, such as as approving an offshore wind farm, must be consistent with states’ coastal management programs.

Main said subpart C-3, which applies to the wind farm scenario, allows only the applicant — in this case Revolution Wind’s developers — to appeal any CRMC vote.

Further, Main said, even if Green Oceans was allowed to appeal, which CRMC and Revolution Wind maintain it was not, the appeal was filed too late. Later in the hearing, further contention arose over the fact that the appeal was filed by Lisa Knight, head of Green Oceans, on behalf of the organization. Knight is not an attorney, meaning this filing could be construed as a criminal offense, the judge said.

Main said since Green Oceans was not a party to the CRMC action, it lacks standing in the case. Further, said she the CRMC vote was not “contested,” so any appeal is not allowed.

Rhode Island law says that “generalized claims about public harms” — described in several affidavits filed in November by offshore wind opponents — is not sufficient to create standing, Main said. Legal standing in such a case, Main asserted, would require “concrete, particular, actual, and imminent” harms. In contrast, opponents of Revolution Wind “relied on future fears that someday something might happen — claims that do not support standing.”

Robert Stetson, of the Boston firm Bernkopf Goodman, representing Green Oceans, said the point of judicial review is to ensure that all branches of government are abiding with the rule of law, and he asserted that the Coastal Zone Management Act “was not meant to preempt judicial review.”

Stetson said one of three options that federal law offers to states when conforming to the act “allows judicial review” and he added that seven out of eight consistency reviews on records across the country “allowed judicial review.” He named several other court cases from Texas to Washington to East Greenwich that, in his view, supported Green Oceans’ right to appeal.

He also said when CRMC receives written objections in a matter the case becomes contested. “Here, there was participation and objections throughout the process,” Stetson said. Lawyers for Revolution Wind and CRMC rejected that position.

Apart from the head-butting over whether Green Oceans has standing as a party to the case, a major issue was the late filing of the appeal. Green Oceans was seeking from the judge an exception and extension of that deadline from 30 days to 60. Such an extension would cover the date the Green Oceans appeal was filed.

But Raspallo told Stetson, “You’ve got to get your appeal in on time; if there is no time limit anyone could come in at any time to thwart a project.”

He also offered strong words on the topic of an appeal filed by someone who isn’t a lawyer, saying the appeal was a potential “criminal offense for practicing law without a license.”

“I am skeptical of allowing a private person, not an attorney, to take steps in violation of the law,” the judge said.

At one point, Stetson said CRMC did not issue a notice of appeal to Green Oceans immediately after its May 12 vote because the agency didn’t want to encourage appeals. He contrasted that with an earlier action, in which CRMC had voted to allow export cables for the wind farm to touch land in Rhode Island and issued a notice of appeal following that vote.

Steven Antonucci, a lawyer representing CRMC, said it was “offensive” for Stetson to imply that the agency sought to discourage appeals. A notice of appeal may be mailed to parties to the case, which did not include Green Oceans, Antonucci said, and it appears on the CRMC website. He added, “The CRMC does not mail out decision to everyone who comes to testify” at public hearings.