County Superior Court
Plaintiff: *SEE ATTACHED LIST
Defendant: *SEE ATTACHED LIST
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, §
(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.
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,
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.
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
'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).
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'
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- "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
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