The Energy Facilities Siting Board (EFSB) has delayed Invenergy‘s application to build a $1 billion fracked gas and diesel oil burning power plant in the pristine forests of northwest Rhode Island by 90 days to give Conservation Law Foundation (CLF) and Burrillville the time needed to get documents from Invenergy the company has withheld and to get experts to analyze the data. The EFSB also denied intervenor status to the Narragansett Indian Tribal Council.

The EFSB heard four motions on Monday. 15 lawyers filled the hearing room of the Public Utilities Commission in Warwick representing Invenergy, CLF, the Building Trades, the Towns of Burrillville and Charlestown, the Narragansett Indian Tribal Council, and the Rhode Island Office of Energy Resources (OER). The hearing got off to an uncharacteristically late start. EFSB board member Parag Agrawal was absent, however board chair Margaret Curran and board member Janet Coit were present and made a quorum.

First up was a motion for intervention filed by the Tribal Council of the Narragansett Indian Tribe (NIT). Since Invenergy signed a deal with the leadership of the tribe, Chief Sachem Matthew Thomas and John Brown, to purchase water to cool the turbines of the power plant, the Town of Charlestown, which shares an aquifer with the NIT, was granted intervenor status.

The Tribal Council, which is in a dispute over the leadership of the NIT with Thomas and Brown, claim the deal struck is illegal and wanted to be granted intervenor status as well. Attorney Shannah Kurland, representing the Tribal Council, asked the EFSB for either intervenor status, limited intervenor status (on the water deal only, as was granted to Charlestown) or for the water deal with Invenergy to be rendered null and void.

Kurland had a difficult task at times, because no one outside of a very few people has been granted access to the actual text of the water deal Thomas and Brown struck with Invenergy. In a letter that Kurland submitted to the board, Thomas claims that the tribe would be paid $222,000 a year to be a secondary water source for Invenergy. This may be true, but in the same letter Thomas claims the water deal the tribe made is for water from property the tribe owns in Westerly, not Charlestown.

Alan Shoer, one of five lawyers present for Invenergy, said that (easily ignorable) public comment would be a more appropriate way for the Tribal Council to make their voices heard. He also said that granting the motion puts the EFSB in the problematic position of deciding on issues of tribal politics. Shoer failed to mention that ruling against the Tribal Council also takes a stand on internal tribal politics, as Attorney Kurland promptly pointed out.

The EFSB decided that the contract between the Tribe and Invenergy would stand and that the EFSB would dismiss the Tribal Council’s motion.

“That’s embarrassing,” said an audience member.

“You have taken a side, clearly,” said Kurland.

The next motion, CLF’s motion for oral argument and a formal ruling on Invenergy’s request for additional hearing in Burrillville was rendered moot, since an additional hearing has been granted and some conditions of the motion had been satisfied. But CLF Attorney Elmer wanted to keep the motion in the record in case an appeal should be necessary. This did not happen.

CLF’s motion for supplemental advisory opinions and for leave to take discovery and file supplemental expert testimony was granted. This request was made after Invenergy revealed that the second of the power plant’s two proposed turbines was banned from entering the next Forward Capacity Auction (FCA). Energy prices and sources are determined in New England via annual auctions, held by ISO New England, that set the price of energy three years in advance. Invenergy’s proposed second turbine, having been denied permission to enter the auction, is a big deal and goes a long way towards bolstering CLF’s contention that the plant is not needed.

When Invenergy learned that the second turbine was denied access to the FCA, it sat on that information for just over a month, allowing their experts to analyze the decision and write a report casting it in the best possible light. CLF’s motion requested time for discovery (which will allow CLF access to documents Invenergy is insisting on keeping secret) and time to have their own experts analyze the decision.

CLF Senior Attorney Jerry Elmer said that Invenergy’s refusal to fill discovery requests “rises to a constitutional level.” Without access to the information, CLF can’t properly analyze the decision to prevent Invenergy’s second turbine from entering the FCA.

Alan Shoer said that the expert analysis that Invenergy’s own expert witness provided should be enough. Shoer complained that whatever information Invenergy supplies, it’s never enough for CLF or Burrillville. Shoer reported that EFSB delays in approving the power plant were given as a reason for disallowing the second turbine from the FCA by ISO New England.

CLF’s attorney Jerry Elmer countered that all the delays in this proceeding so far have been caused by Invenergy. EFSB board member Janet Coit also objected to Shoer’s characterization, saying that the EFSB is not responsible for the application’s delay, and that the fault lies with Invenergy.

After discussion, the EFSB delayed the final hearings for an additional 90 days so that CLF and Burrillville might have a chance at discovery and expert analysis. The final hearings were to start in December, now we are looking at a March date. Also, the Rhode Island Division of Planning and the OER will use that time to render new or supplemental advisory opinions.

Given all that came before it, the last motion was unlikely to be granted. The Town of Burrillville filed a motion for dismissal or denial of Invenergy’s application for failure to comply with an order of the EFSB and EFSB rules. Burrillville’s attorney, Michael McElroy, listed in detail every mistruth and untimely disclosure that Invenergy presented in the two years since submitting their application.

This went on for some time.

Invenergy countered that its disclosures would have been timely had Burrillville simply asked the right questions. For instance, when Burrillville asked for a list of water deals Invenergy had made, Invenergy did not disclose the deal between Benn Water and Fall River, because technically Invenergy was not part of that deal, even though Benn Water was essentially subcontracting for Invenergy when dealing with Fall River.

Invenergy’s position seemed to be that if you don’t want important information systemically withheld or intentionally vague and incomplete answers, ask better questions. Invenergy only has to answer specific questions with specific answers. Ask the wrong questions and you’ll get no answers.

Chair Margaret Curran said that in the future, Invenergy should disclose contracts to which they are a party. Given that, however, the mistruths and vague answers that Invenergy has systemically presented do not rise to the level of dismissal of the docket. The motion was denied.

Which begs the question:

If Invenergy can lie, mislead and withhold information without having their application dismissed, what behavior does rise to the level of dismissal in the eyes of the EFSB?