RHODE ISLAND COGENERATION ASSOC. v. EAST PROVIDENCE

• Court: U.S. District Court — District of Rhode Island
• Writing for the Court: PETTINE, Senior
• Citation: RHODE ISLAND COGENERATION ASSOC. v. EAST PROVIDENCE, 728 F.Supp. 828 (D. R.I. 1990)
• Decision Date: 04 January 1990
• Docket Number: Civ. A. No. 89-0327P.
• Parties: RHODE ISLAND COGENERATION ASSOCIATES, A Delaware Limited Partnership; Newbay Corporation and Oeig Limited Partnership, General Partners; and Newbay Corporation v. The CITY OF EAST PROVIDENCE; The City Council of the City of East Providence; Leo C. Sullivan, Gerald R. Lynch, Paul J. Tavares, Joseph A. Botelho, Jr., and John J. Hurley, in their official capacities; and Alice Soares, Acting Treasurer, The City of East Providence.

728 F. Supp. 828

RHODE ISLAND COGENERATION ASSOCIATES, A Delaware Limited Partnership; Newbay Corporation and Oeig Limited Partnership, General Partners; and Newbay Corporation v. The CITY OF EAST PROVIDENCE; The City Council of the City of East Providence; Leo C. Sullivan, Gerald R. Lynch, Paul J. Tavares, Joseph A. Botelho, Jr., and John J. Hurley, in their official capacities; and Alice Soares, Acting Treasurer, The City of East Providence.

Civ. A. No. 89-0327P.

United States District Court, D. Rhode Island.

January 4, 1990.

George E. Liberman, Robert A. Pitassi, Licht & Semonoff, Providence, R.I., for plaintiffs.

William J. Conley, Jr., City Sol., East Providence, R.I., Michael Rubin, Asst. Atty. Gen., Providence, R.I., for defendant-intervenor, R.I.

James Purcell, Steven Snow, Providence, R.I., for defendants.

OPINION AND ORDER

PETTINE, Senior District Judge.

This action is brought by a corporation and a related limited partnership that plan to build a coal-fired cogeneration electrical facility in East Providence. Their efforts were stifled by the passage of an ordinance by the City Council of East Providence that bans the commercial use of coal anywhere in the City. The corporation and limited partnership are asking this Court to declare the ordinance void and to award damages for the costs the plaintiffs have incurred because of the delays in constructing and operating the facility caused by the passage of the ordinance and this ensuing lawsuit. The case is presently before the Court on two separate motions. In the first, the Attorney General of Rhode Island, James E. O'Neil, in his official capacity, seeks to intervene on the side of the defendants. In the second motion, the plaintiffs are asking for partial summary judgment on Counts I, II, and X of their Complaint.¹ In essence, this is a motion for complete summary judgment on the question of the validity of the City's Ordinance, as a finding of summary judgment for the plaintiffs on either Count I or Count II would void the Ordinance. Only the question of damages would remain.

For the reasons stated below, the motion of the Attorney General for intervention of right is granted. In the plaintiffs' motion for summary judgment, the critical question raised is whether the authority to enact this Ordinance has been preempted by state and federal environmental control laws. As I find that state law does preempt the Ordinance, the question is dispositive. That being so, the other issues raised in the plaintiffs' motion will not be addressed.

I. FACTS

A short summary of the events leading to the institution of this suit will give context to the issues raised in these motions. The plaintiffs (Newbay) are the Newbay Corporation and Rhode Island Cogeneration Associates. The defendants (City) are the City of East Providence, the East Providence City Council, the members of the City Council in their capacity as City Council members, the Mayor of East Providence, and the Treasurer of East Providence. Newbay plans to build and operate a 72.5 megawatt coal-fired cogeneration electrical facility (the Facility) on Dexter Street in East Providence. The site chosen by Newbay for the Facility is zoned for heavy industrial use — a use which permits the construction of power plants. In 1987, Newbay obtained a variance from East Providence's zoning ordinance to permit the building of a stack that exceeded the height limitations in the zoning ordinance. The plaintiffs also obtained a special exception to store coal outside on the site of the Facility. Newbay is presently being evaluated by the Rhode Island's Department of Environmental Management, which licenses the operation of facilities like Newbay.

On May 15, 1989, the City Council passed a nuisance ordinance (Ordinance) entitled "Industrial Use of Coal." This Ordinance bans the industrial use of coal in East Providence.² Newbay is thus prohibited from operating its planned coal-fired cogeneration electrical facility in the City of East Providence.

On May 18, 1989, Newbay filed suit in the United States Federal District Court, District of Rhode Island. Newbay is asking for a declaratory judgment that the Ordinance is null, void and unconstitutional. The plaintiffs claim that the Ordinance 1) is ultra vires, 2) is preempted by state law, 3) is the result of an arbitrary exercise of power by the City, 4) denies Newbay equal protection of the laws, 5) denies Newbay its property without just compensation, 6) cannot be enforced against Newbay because Newbay reasonably relied upon representations of City officials that it could operate the Facility, 7) is a zoning ordinance disguised as a nuisance ordinance, and 8) is an improper interference with Newbay's contractual relationships. Newbay also seeks damages.³

II. INTERVENTION BY ATTORNEY GENERAL

The Attorney General of Rhode Island seeks intervention of right under Fed. R.Civ.P. 24(a)(2).⁴ As the chief legal officer of the state, the Attorney General has an interest in how the laws of the state are interpreted. Although the plaintiffs in this case are facially only challenging the validity of an ordinance of the City of East Providence, the validity of that Ordinance may rest on the interpretation of state laws delegating powers to local governments and on the preemptive force of other state laws. The Attorney General's interest in this case is not simply in the interpretation of a single statute, but rather in the interpretation of the state's overall scheme of sharing or prohibiting governing powers with the cities and towns. The success of several of the plaintiffs' claims rests on how this Court interprets state laws delegating powers to cities and towns. This interest of the Attorney General is sufficient to satisfy the "interest" requirement of Fed.R.Civ.P. 24(a)(2). See Nuesse v. Camp, 385 F.2d 694 (D.C.Cir.1967) (state banking commission has interest in controversy involving Comptroller of Currency that concerns the nature and protection of state policy); Smith v. Pangilinan, 651 F.2d 1320 (9th Cir.1981) (U.S. Attorney General has protectable interest in action in which plaintiffs sought certificates of identity under laws of Northern Marianas as outcome could have effect on law regarding entitlement to U.S. citizenship).

It is perhaps a closer question whether the state's interest is adequately represented by the City of East Providence. According to 7C Wright and Miller, Federal Practice § 1909, at 319, if the interest of the intervenor "is similar to, but not identical with, that of one of the parties, a discriminating judgment is required on the circumstances of the particular case, but he ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee." Here, the Attorney General seeks to represent the state's interests in local autonomy, an interest different from the City's interest in local autonomy.⁵ This basic difference in concern for local autonomy is a sufficient indication that the state may not be adequately represented by the City of East Providence. See Hines v. D'Artois, 531 F.2d 726 (5th Cir.1976) (state examiner for fire and police civil service has right to intervene in employment discrimination suit against police department because employment practices intervenor required to administer were at stake in suit).

Therefore, as the Attorney General's motion for intervention was timely, and as an adverse ruling by this Court could hinder future attempts by the Attorney General to defend his position, the motion to intervene as of right is granted. The "Memorandum of Law" filed by Attorney General as a prospective Defendant-Intervenor in response to plaintiffs' motion for partial summary judgment will be considered in the Court's ruling on that motion.

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

A. The Law of Summary Judgment

Newbay moves for summary judgment on the question of whether the Ordinance has been preempted by the state and federal environmental control laws. According to Fed.R.Civ.P. 56(c), summary judgment is appropriate when:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

This Court "must view the facts in the light most favorable to the nonmoving party and indulge all inferences favorable to that party." Borowiec, et al. v. Local No. 1570, etc., et al., 889 F.2d 23, 26 (1st Cir. 1989). However, the party opposing summary judgment may not defend its position with mere allegations, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In this case it is important to note that the mere existence of some factual disputes will not prevent summary judgment; the factual dispute must be material in that the dispute's determination in favor of the nonmoving party could lead a jury to find a verdict for the nonmoving party.

B. Preemption by State Law

The parties have raised no issues of material fact that impede this Court from reaching the merits of the controversy of whether East Providence's Ordinance is preempted by the state and federal environmental control laws and is therefore void. Preemption itself always boils down to a question of legislative intent (here, the intent of both Congress and the Rhode Island Legislature): did the legislatures intend to preempt the ordinances of cities and towns when they passed the laws in question. If the legislatures did so intend, there is preemption. Legislative intent is a question of law. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988); California Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987); Securities Industry Association v. Connolly, 883 F.2d 1114,...