A New Jersey appeals court ruled on May 29 that the New Jersey Board of Public Utilities’ refusal to approve an offshore wind project was lawful and should be given deference.
In a unanimous decision, a three-judge panel at the Superior Court of New Jersey’s Appellate Division ruled that BPU’s decision to quash Fishermen’s Atlantic City Windfarm LLC‘s application for offshore wind renewable energy certificates, which are part of the company’s plan to build a five-turbine, 25-MW demonstration project off the coast of Atlantic City, was arrived at within the board’s statutory authority and discretion.
Fishermen’s Atlantic City Windfarm (FACW) had filed an application under the New Jersey Offshore Wind Economic Development Act (OWEDA) for approval of a wind energy project that would be subsidized by the state’s ratepayers. The Board of Public Utilities (BPU) rejected the application for several reasons, including concerns about the project’s economic and technological viability, the cost of the electricity it would produce, and whether under the statutory standard the project would produce a net benefit to the state.
FACW appealed three decisions of the BPU: the rejection FACW’s application in March 2014; the denial of its motion for reconsideration in April 2014; and a reaffirmation of the denial in November 2014. All of this was after a remand from this court.
“Having reviewed the record in light of the applicable legal standards, we affirm,” said the court’s May 29 decision about the BPU’s rejections.
Late in the ruling, the court wrote: “After reading the voluminous record presented to us, we cannot conclude that the Board’s decision was arbitrary or unsupported by evidence. The record is replete with expert reports and filed testimony, setting forth conflicting views about the viability of FACW’s proposed project and the wisdom of approving it. In the final analysis, the Board was persuaded that FACW had not established the financial viability of the project, or the financial integrity of its business partners, and the Board was not persuaded that the risks and costs of using an unproven technology to produce electricity at prices several times the market price were offset by the asserted benefits of the project.
“Those were policy decisions which the Legislature has authorized the Board to make. It is not our role to judge the wisdom of the Board’s decision or to second-guess the Board’s findings unless there is no evidence to support them. Having read the entire record, we find there is ample evidence to support the Board’s decision.”