“I’m praising CLF for taking the case,” said Conservation Law Foundation Senior Attorney Jerry Elmer. “We took the case because it was the right thing to do. Because it’s wrong to build a new fossil fuel power plant that will make it impossible for the state to meet its carbon-emission reduction goals.”
Elmer was speaking to a crowd of over 50 people at the Friends Meeting House in Providence. He was there to discuss the progress CLF has made in litigating against Invenergy‘s proposal to build a $1 billion fracked gas and diesel oil burning power plant in the heart of the pristine forests of northwest Rhode Island. The case is currently before the Energy Facilities Siting Board (EFSB).
“Invenergy is a Delaware corporation that has an office in Chicago, that has a proposal to build a 1000 megawatt fossil fuel power plant in Burrillville. The plant would be fueled by fracked natural gas and by diesel oil,” said Elmer. “The proposal for the power plant has significant political support in the state of Rhode Island. It was announce at a news conference on August 3, 2015 by Governor [Gina] Raimondo speaking together with Mike Polsky, the president of Invenergy. The proposal is supported by the Chamber of Commerce, it’s supported by the AFL-CIO and there are very, very few matters in which the Chamber of Commerce and the AFL-CIO agree with each other.”
CLF had scored a significant win earlier in the week, and that win increased Elmer’s estimation of his odds of beating Invenergy.
“We had gotten recent information that Invenergy’s second turbine had been disqualified from the next [ISO New England] Forward Capacity Auction,” said Elmer. “This was dramatically new information which Invenergy withheld from us when Invenergy got the information in September. We only learned about it in November. We took it to the board and said, ’This is further evidence of the fact that the plant is not needed and may actually never be able to be built. We need more time to take more pre-trial discovery [and] get more expert testimony in.’ We asked the board for 45 days, they gave us 90 days.
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“I believe that there was a markedly new tone among the EFSB members on Monday of this week, in which they displayed more skepticism toward Invenergy than we had seen before,” said Elmer.
“I don’t want to overstate how good our situation is. Governor Raimondo held that news conference announcing the plant on August 3, 2015. CLF decided to take the case the same month, August 2015. At the time CLF decided to take the case, I believed that our chances of winning the case were about zero. They approached zero asymptotically. And I think it’s a good thing – I’m praising CLF for taking the case – we took the case because it was the right thing to do, because it’s wrong to build a new fossil fuel power plant that will make it impossible for the state to meet its carbon-emission reduction goals.
“Since we made that decision,” continued Elmer, “a number of things have gone our way. There have been delays, there has been mounting evidence that the plant is not needed… I believe that with the most recent events of the past week and the past six weeks our chances of winning the case are up to about 50 or 52 percent. Now there are two things that you can say about that, and they’re both true. One is that a 52 percent chance of success is a lot higher than a zero percent chance of success. We’ve come a long way. The second thing you can say is: This is not a slam-dunk yet. It is an uphill fight.”
Despite this win, the fight in the EFSB is far from over.
“We’re looking at a final hearing… starting around March 1 ,” said Elmer. “It will take place over 22 or 24 non-consecutive days, over a three month period, March April, May… In June we’ll take a month for the lawyers to do a briefing of the case for the EFSB, after the hearing is over [and] before they make a decision… During the Summer, I’m guessing July… the EFSB will hold a so-called ‘open meeting’ at which the members of the EFSB will deliberate about the case and make a decision. ‘Yes we permit it, no we don’t.’
“It is entirely possible that this will not be a yes/no decision, it could be a decision that says, ‘Yes, we will permit the plant subject to the following eight or eleven conditions.’ This is a power the EFSB has that can hurt our side very much for the following reason: We opponents say to the EFSB, ‘You can’t permit the plant, they don’t have a water plan yet.’ … Normally, that would be a fairly good legal argument. In the EFSB it doesn’t work because there’s a long history within the EFSB [of] giving permits subject to later conditions.
After the July decision, continued Elmer, “it will probably be about a month before the written order comes out. It will be at least 150 pages. It may be a lot more. Some of them are a lot longer. It will reflect the decision that they voted on at the open meeting.
“That written order will trigger the appeal period. It’s a ten-day appeal period. The losing side has a right to appeal. The appeal goes directly to the Rhode Island Supreme Court… A Supreme Court appeal can take 12-15 months and one thing you’ve got to know is: This is a billion dollar power plant, and Invenergy cannot close on bank loans to finance the plant during the pendency of the Supreme Court appeal, because those loans could be at risk if the permit is reversed by the appellate court.
“So the mere taking of an appeal may delay the plant for as much as another year…”
So, where are we now?
“The EFSB has been there for 31 years, and until this case, it has always worked the way the General Assembly intended it to work, which was to be an accelerated rocket docket toward permitting,” said Elmer. “Invenergy filed its 473-page application on October 29, 2015. On the first page of the 473-page application, Invenergy said: We would like our permit by January of 2016 so we can have shovels in the ground by March of 2016… Based on the uniform experience of how the EFSB had worked since its creation in 1986, that was a fair, honest and realistic expectation of Invenergy. In January of 2018, the final hearing will not yet have started, let alone the entire hearing, let alone the appeal procedure.
“We have come a very, very long way. Things are looking up, but there is a long road ahead.”
You can watch Elmer’s entire presentation, including the question and answer period, in the video below.
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