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Conservation Law Foundation, Inc. v. Clear River Energy, LLC

Superior Court of Rhode Island

June 20, 2017

CONSERVATION LAW FOUNDATION, INC., Plaintiff,
v.
CLEAR RIVER ENERGY, LLC, and TOWN OF JOHNSTON, RHODE ISLAND, Defendants. TOWN OF BURRILLVILLE, RHODE ISLAND, Plaintiff,
v.
CLEAR RIVER ENERGY, LLC, and TOWN OF JOHNSTON, RHODE ISLAND, Defendants.

         Providence County Superior Court

          For Plaintiff: *SEE ATTACHED LIST

          For Defendant: *SEE ATTACHED LIST

          DECISION

          SILVERSTEIN, J.

         Before the Court in these consolidated matters are Defendants'-Clean River Energy, LLC (CREC) and Town of Johnston, Rhode Island (Johnston) (collectively, Defendants)-motions to dismiss Plaintiffs'-Conservation Law Foundation, Inc. (CLF) and Town of Burrillville, Rhode Island (Burrillville) (collectively, Plaintiffs)-Amended Complaints pursuant to Super. R. Civ. P. 12(b)(1), 12(b)(6), and 12(b)(7). In their nearly identical Amended Complaints, both CLF and Burrillville seek the same relief: (1) a declaration that Johnston has no legal authority to sell to CREC water initially purchased from the Providence Water Supply Board (PWSB) under P.L. 1915, ch. 1278, § 18;[1] (2) a declaration that Johnston has no legal authority to sell CREC water initially purchased from the PWSB under any provision of Rhode Island law; and (3) injunctive relief preventing Johnston from receiving water from the PWSB and reselling it to CREC for use in CREC's proposed power plant. Plaintiffs frame their requests for relief as presenting a straightforward matter of statutory interpretation-that is, whether Johnston's reselling of water to CREC is a "domestic, fire [or] other ordinary municipal water supply purpose[] . . . ." See P.L. 1915, ch. 1278, § 18.

         Defendants seek to place Plaintiffs' claims within the broader context of what amounts to the proverbial elephant in the room-CREC's proposed power plant and Plaintiffs' adamant opposition to it. Admittedly, CLF and Burrillville's requests for declaratory judgments and injunctive relief do not arise in isolation; they arise under the possibility that Burrillville may someday be home to the proposed power plant which Plaintiffs presently oppose. Yet the contested policy issues clouding the proposed power plant's impending hearing before the Energy Facility and Siting Board (EFSB)-specifically those of licensing and permitting-are of no moment to this Court. These motions to dismiss pose legal questions relating to the doctrines of standing, exhaustion of administrative remedies, joinder of indispensable parties, and so on. The Court exercises jurisdiction pursuant to G.L. 1956 §§ 9-30-1, et seq.

         I

         Facts and Travel

         On January 6, 2017, Johnston and CREC executed a contract-the "Water Supply and Economic Development Agreement" (the Water Agreement)-which, by its terms, obligates Johnston to provide CREC with water. Unable to obtain water from Burrillville or Woonsocket, CREC turned to Johnston for a steady supply of water. CREC needs water to cool its proposed power plant. Pursuant to the Water Agreement, Johnston, which purchases water from the PWSB, will sell water to CREC. Johnston plans on constructing a water supply facility in Johnston at which CREC can fill up on the water it needs. CREC will send trucks to that facility, fill up with water, and return to Burrillville.

         Shortly after CREC and Johnston executed the Water Agreement, CLF and Burrillville separately filed suit alleging that Johnston's sale of water-water initially obtained from the PWSB-violates the statutory water use restrictions codified in Section 18 of ch. 1278 to P.L. 1915. In early April of 2017, the Court consolidated CLF and Burrillville's cases. At the end of April, CREC and Johnston moved to dismiss Plaintiffs' Amended Complaints; Plaintiffs objected. Over the course of the next month, all parties filed memoranda and reply memoranda in support of their respective positions. The Court heard argument on May 31, 2017.

         II

         Standard of Review

         "The 'sole function of a motion to dismiss is to test the sufficiency of the complaint.'" Martin v. Howard, 784 A.2d 291, 297 (R.I. 2001) (quoting R.I. Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)). In testing the sufficiency of the complaint, the "'Court assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiffs.'" Id. at 297-98 (quoting St. James Condo. Ass'n v. Lokey, 676 A.2d 1343, 1346 (R.I. 1996)); see also Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008). Our Supreme Court has long adhered to the rule that "no complaint will be deemed insufficient unless it is clear beyond a reasonable doubt that the plaintiff will be unable to prove his right to relief [.]" Bragg v. Warwick Shoppers World, Inc., 102 R.I. 8, 12, 227 A.2d 582, 584 (1967). Accordingly, a motion to dismiss "should not be granted 'unless it appears to a certainty that [the plaintiffs] will not be entitled to relief under any set of facts which might be proved in support of [their] claim.'" Martin, 784 A.2d at 298 (quoting St. James Condo. Ass'n, 676 A.2d at 1346) (alterations in original).

         III

         Discussion

         Defendants move to dismiss Plaintiffs' Amended Complaints for several reasons. First, Defendants assert that CLF and Burrillville lack standing-a prerequisite to seeking a declaratory judgment. Second, Defendants argue that Plaintiffs have not exhausted their administrative remedies with the EFSB and, accordingly, the Court should dismiss their Amended Complaints. Third, Defendants argue that the EFSB has primary jurisdiction over all issues of licensing and permitting major energy facilities-including CREC's proposed power plant. Fourth, Defendants aver that the Court is without any role in the EFSB's decision-making process because decisions of the EFSB are appealable only to the Rhode Island Supreme Court. Fifth, Defendants ask the Court to dismiss Plaintiffs' claims on the ground that they have failed to join indispensable parties. Finally, Defendants seek to dismiss Plaintiffs' request for injunctive relief. Plaintiffs oppose each of Defendants' arguments.

         The statute at the root of these cases, P.L. 1915, ch. 1278, § 18, provides, in pertinent part, that certain towns, cities, and other entities-including both Johnston and Burrillville[2]- "shall have the right to take and receive water [from the PWSB] for use for domestic, fire and other ordinary municipal water supply purposes . . . ." However, before determining the merits of these consolidated cases, the Court first considers whether Plaintiffs have standing.

         A

         Standing

         Defendants first contest whether Plaintiffs have standing to pursue the declaratory judgments they seek. Plaintiffs argue that they not only have standing to challenge Johnston's legal authority to sell water to CREC, but they also aver that if the Court finds that Burrillville and CLF lack standing, then the Court should invoke the "substantial public ...


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