Block Island offshore wind celebrated, challenged

U.S. and Rhode Island officials recently celebrated the start of construction on the Block Island Wind Farm, which is on track to be the first commercial offshore wind farm in the U.S.  The five-turbine, 30-megawatt project under development by Deepwater Wind is scheduled to come online in 2016; turbine foundation construction and other "steel in the water" activities are underway.  As a pioneer in U.S. offshore wind development, the Block Island project has survived years of permitting uncertainty and repeated legal challenges by project opponents.  But another such lawsuit was filed this week in federal court.  What does the future hold for the Block Island Wind Farm?

Project developer Deepwater Wind is owned principally by an entity of the D.E. Shaw group.  Its Block Island project is currently under construction in Rhode Island state waters about three nautical miles southeast of Block Island.  The project will feed power directly to consumers on Block Island, but also includes a 25-mile bi-directional submerged transmission cable between Block Island and the mainland. The project's finances rest in part on a power purchase agreement through which Deepwater Wind will sell power to utility National Grid.

That power purchase agreement, or PPA, has been the subject of several legal challenges.  Those challenges often cite the deal's cost: pricing for the Block Island power starts as high as 24.4 cents per kilowatt-hour, and escalates 3.5 percent annually.  These prices are more than double the typical Rhode Island energy price, for an estimated $497 million in above-market costs over the 20-year deal.

In 2009 and early 2010, the Rhode Island Public Utilities Commission rejected proposals by Deepwater Wind and National Grid, largely over cost.  The parties then returned with a revised proposal.  In 2010, TransCanada Power Marketing Ltd. unsuccessfully argued that the Rhode Island commission shouldn't consider that proposal due to constitutional infirmities in the Rhode Island law favoring renewable power contracts with in-state projects.  On August 16, 2010, the Commission issued its order approving the PPA.  After that order was appealed to the state Supreme Court, the Supreme Court issued a written opinion upholding the Commission's Order on July 1, 2011.  In 2012 and in 2015, project opponents petitioned the Federal Energy Regulatory Commission to invalidate the Rhode Island commission's action, which FERC declined to do.  Through all this, the project moved forward and ultimately began local construction earlier this year.

But the project is not yet completely out of stormy seas.  On August 14, 2015, plaintiffs with a history of engagement in some of these earlier challenges filed a lawsuit in U.S. District Court in Rhode Island.  As in previous challenges, this complaint argues that the Rhode Island Public Utilities Commission violated federal laws in approving the Block Island deal because only the Federal Energy Regulatory Commission may regulate wholesale electricity sales.  While it is possible that this case could be swiftly dismissed, if it lingers it could add uncertainty to the project until its resolution.  Last year a federal court invalidated a FERC ruling on the grounds that it impermissibly tread on state rights to set retail electricity rates.  That case, Electric Power Supply Association v. Federal Energy Regulatory Commission, has been appealed to the U.S. Supreme Court.

With construction underway, the Block Island project now has significant inertia behind it.  What impact will the recently filed lawsuit have?  Will it affect Deepwater Wind's position as "first in the water" in the race for U.S. commercial offshore wind development?

Maine PUC declines to OK Statoil offshore wind term sheet

Today the Maine Public Utilities Commission declined to approve a term sheet offered by Statoil North America, Inc. for a long-term power purchase agreement from its proposed Hywind Maine floating offshore wind project.

Sutton Island, Maine, about 80 miles downeast of the proposed Hywind Maine project.

In 2010, Maine enacted a law designed to support the development of offshore wind and other marine renewable energy projects.  Among other features, that law required the state Public Utilities Commission to conduct a competitive solicitation for proposals for deep-water offshore wind energy pilot projects, meaning grid-tied floating wind projects at least 10 nautical miles offshore.  The statute gave the commission authority to direct mainland utilities to enter into power purchase agreements with one or more responding developers if certain minimum criteria were met.  This authority was discretionary, meaning the commission could choose not to order the utilities to sign a deal even if it met those criteria.

In September 2010, the commission issued its request for proposals under the program. Over the ensuing years, Statoil emerged as the apparent leading respondent, proposing the "Hywind Maine" project, a four-turbine, twelve megawatt project south of Boothbay Harbor.  Commission staff and Statoil negotiated the terms of a proposed power purchase agreement, which became public this summer.  Among those terms was a proposed energy price of between $290 and $320 per megawatt-hour, escalating annually, for the first 41 gigawatt-hours of energy produced each year.

That term sheet was the subject of deliberations by the Maine commission this morning.  After two hours of discussion, two of the three commissioners had stated that they would vote against approving the term sheet.  They expressed concerns about the cost of the contract, as well as uncertainty over the deal's benefit to Maine and Maine ratepayers.

The Maine commission's action bears some resemblance to that of the Rhode Island Public Utilities Commission in 2010 when it rejected a proposed contract between utility National Grid and offshore wind developer Deepwater Wind on the grounds that $244 per megawatt-hour was not a "commercially reasonable" price.  The Rhode Island commission ultimately approved a renegotiated deal with Deepwater Wind at a comparable price.  Similarly, the Maine commission invited Statoil to revise its proposal to offer more benefits to Maine, and to present a renegotiated deal for further deliberation.  Will Statoil be able to sweeten its offer and convince the commission that its contract is a good deal for Maine?