In response to the cancellation of next week’s Show Cause Hearing, lawyers from Conservation Law Foundation (CLF) and the Town of Burrillville are asking the Energy Facilities Siting Board (EFSB) to suspend the Invenergy docket until the second Federal Energy Regulatory Commission (FERC) lawsuit is resolved, and to schedule a new Show Cause Hearing to address their request.

Invenergy seeks to build a $1 billion fracked gas and diesel oil burning power plant in the heart of the pristine forests of north west Rhode Island.

“The EFSB has already shown that it is worried about Invenergy’s attempts to shift cost risks onto ratepayers,” said Jerry Elmer, senior attorney at CLF. “In today’s filing, we are showing how the lawsuit against Invenergy that is still pending at FERC has tremendous potential to shift cost risks onto ratepayers. That’s why we are asking the EFSB to suspend the Invenergy docket until the FERC lawsuit is resolved.”

A key argument in the CLF/Burrillville Motion is that the still-pending FERC lawsuit contains significant potential for Invenergy to shift cost risks to ratepayers.

The lawsuit under discussion is being brought by National Grid, who maintain that Invenergy seeks to “effectively force National Grid to incur substantial costs to facilitate the Clear River interconnection well before Clear River would provide security or other financial support for the interconnection. This would shift project development risk for Clear River’s project to National Grid’s captive ratepayers, undermining the purpose of the restructured electric industry in New England where generation developers assume the risks of their own projects.”

“Invenergy continues to talk out of both sides of its mouth,” maintains Elmer. “Invenergy says that its project will have no cost to ratepayers, but in the FERC lawsuit that is still pending Invenergy is still trying to shift cost risks to ratepayers. On December 20, Invenergy told FERC in no uncertain terms that if it doesn’t get its way on changing the schedule for posting financial security for the interconnection, it will walk away from the Burrillville project; on Wednesday, Invenergy told the EFSB exactly the opposite.  This fact is highlighted in the Motion, on page 7, the last paragraph before the Conclusion:

“The EFSB, CLF, Burrillville, and all the parties need to know whether Invenergy will keep its promise to abandon the project (as any reasonable developer would) if it is forced to follow the requirements of the ISO Tariff – or if Invenergy will keep its other promise, to proceed with the Project (as no reasonable developer would, according to Invenergy).”

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In a second motion delivered to the EFSB today CLF and the Town of Burrillville object to the EFSB’s cancellation of the original Show Cause hearing.

“The EFSB may not have been so willing to cancel the Show Cause Hearing on January 30 if the EFSB members had realized that Invenergy’s withdrawal of its lawsuit was without prejudice,” said Jerry Elmer. “This means that Invenergy can re-file the identical lawsuit any time it chooses, including after the EFSB grants it a possible permit. Given Invenergy’s history of trying to hide its efforts to shift costs to ratepayers — and then lying about those efforts when they were caught — CLF believes that there is a real risk of Invenergy re-filing its FERC lawsuit at some time in the future.”

This is argued in the attached motion on page 4 in the second paragraph.

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Here’s the part of the first motion that discusses the reasoning :

CLF and Burrillville respectfully submit that the EFSB (as well as all the parties to this proceeding) want and need to know the outcome of the ISO Lawsuit at FERC before this case proceeds to a Final Hearing – because that outcome will affect this proceeding in several meaningful ways.

First, and of perhaps greatest importance, is Invenergy’s continuing effort to shift cost risks onto Rhode Island and New England ratepayers. The EFSB was rightly concerned with this issue in the case of a second lawsuit at FERC, EL18-31; the problem of Invenergy’s attempt to shift cost risks to ratepayers is also present in the ISO Lawsuit, which is still pending at FERC.

There is an unfortunate pattern here in Invenergy’s behavior. Invenergy did not inform the EFSB of its cost-shifting efforts in EL18-31; indeed Invenergy did not even inform the EFSB about the existence of that lawsuit until after CLF and the Town had done so. And Invenergy only withdrew EL18-31 when it was forced to do so as a result of the public outcry that resulted from the disclosure of the facts by CLF and the Town.

Respectfully, the EFSB should be equally concerned with Invenergy’s improper attempt at cost risk shifting in the ISO Lawsuit, which is still pending before FERC.

Second, if/when FERC approves the ISO’s Section 205 Compliance Filing, it will be confirming the requirement of the Tariff that National Grid build the interconnection line. This makes it virtually impossible that the plant will have a COD date of June 2021, given National Grid’s projections. Yet Invenergy has no proposal before the EFSB for a plant with a later COD.

Moreover, Invenergy’s current, hoped-for COD is already its third. Invenergy’s original proposal was for a plant with a COD of 2019. Invenergy’s next proposal was for a plant with a COD for June 2020. Now Invenergy proposes a third COD, June 2021, but we know that if/when the ISO prevails in the ISO Lawsuit, even that will be virtually impossible given National Grid’s time projections.

Third, Invenergy told FERC that it is unwilling to proceed with the project if FERC upholds the current requirements of the ISO Tariff that apply to all power plant developers in New England. This was not a casual statement by Invenergy. It was in a filed legal pleading, signed by counsel, under the FERC analogue of Rule 11 in Federal Courts. FERC Rule 2101(c), 18 CFR 385.2101(c).

Invenergy can, of course, argue that if/when it loses the ISO Lawsuit, it will nevertheless post the FA and issue the Notice To Proceed (NTP), despite having averred repeatedly that it is unwilling to do so. However, any such assertion would merely shows why a stay is needed in this Docket until the FERC lawsuit is resolved – so that the EFSB can see what Invenergy actually does, not what its public relations spokesperson asserts it might do.

Finally, the outcome of the FERC lawsuit may result in bringing clarity to the question of whether Invenergy will be able to interconnect to the ISO-run electricity grid. While there is a separate EFSB docket pending on the interconnection issue (SB 2017-1), that question also has obvious relevance here. If there is no interconnection, there is no power plant.

The EFSB, CLF, Burrillville, and all the parties need to know whether (or not) Invenergy will be allowed to get away with its attempt to shift cost risks to ratepayers. We have a right to know this before the Final Hearing.

The EFSB, CLF, Burrillville, and all the parties need to know whether (or not) Invenergy’s power plant can be operational in June 2021 – because that is the only evidence pending before the EFSB.

The EFSB, CLF, Burrillville, and all the parties need to know whether Invenergy will keep its promise to abandon the project (as any reasonable developer would) if it is forced to follow the requirements of the ISO Tariff – or if Invenergy will keep its other promise, to proceed with the Project (as no reasonable developer would, according to Invenergy).