The Energy Facilities Siting Board (EFSB) has voted, 3-0, to hold a show-cause hearing to provide Invenergy a chance to demonstrate why the pending docket to approve or deny the construction of a $1 billion fracked gas and diesel oil burning power plant in the forests of north west Rhode Island should not be postponed pending the resolution of two lawsuits presently before FERC.
Two major issues were discussed by members of the board. The first concerned the back up water supply agreement with the Narragansett Indian Tribe (NIT). Board member Janet Coit said she was not confident in the contract between Invenergy and the NIT because of a letter from Narragansett Chief Sachem Matthew Thomas, who said in a letter, contra Invenergy, that the water was not going to be sourced from tribal lands in Charlestown, but from a farm owned by the tribe in Westerly.
Invenergy attorney Elizabeth Noonan said that the water is coming from NIT lands in Charlestown.
Board member Parag Agrawal, meanwhile, insisted that even if the water were coming from Charlestown, the EFSB should be made aware of exactly where the water is coming from, indicating that a small dot on a map was insufficient.
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Board Chair Margaret Curran had questions about tribal governance, and whether or not those tribal representatives who signed the deal with Invenergy even had the right to enter into such an agreement. The Narragansett Tribal Council, for instance, maintains that the deal between Invenergy and the NIT is illegal.
Beyond the concerns about the tertiary water source, the EFSB was concerned about the revelations in a letter to the EFSB from Invenergy’s Director of Development John Niland. In the letter, Niland admitted that difficulties in negotiating a Large Generator Interconnection Agreement (LGIA) between Invenergy, National Grid and ISO New England, has lead Invenergy to file two lawsuits, to be argued before the Federal Energy Regulatory Commission (FERC).
Invenergy is required to pay for the installation of power lines that will connect their proposed power plant to the grid. Invenergy says that they do not want and do not intend to pay for the connection, which may cost in the range of hundreds of millions of dollars.
EFSB Chair Curran said that “Invenergy has taken the position that the generator [of electricity] should not be responsible for the costs [but that] the cost should be socialized. And in this case I believe that that means the cost would be socialized throughout the area ISO New England controls.”
In other words, the ratepayers should be on the hook for the connection.
If Invenergy prevails in this lawsuit, said Curran, then the company “cannot claim to not put costs on ratepayers” as it says in their initial application. And, without knowing the outcome of the cases before FERC, “We can’t evaluate the cost of the facility.”
Board member Janet Coit noted that the Rhode Island Public Utilities Commission (PUC) advisory opinion about the proposed power plant (decided by lone member of the PUC board Herbert DeSimone Jr), was based on an evaluation of the cost of and need for the proposed power plant. The addition of hundreds of millions of dollars of interconnection costs were not considered.
Coit noted that Niland’s letter indicated that the FERC cases may run for no longer than 60 days, but the 60 days estimate was for the first of the two lawsuits only, said Conservation Law Foundation (CLF) Senior Attorney Jerry Elmer. The second lawsuit is longer and more complicated, and Elmer estimates the suit might take anywhere from 8 to 18 months to be resolved.
Invenergy has known that they were on the hook for all costs associated with connecting to the power grid since January 16, 2015, said Elmer. Elmer notes that in their lawsuit, Invenergy says that not socializing the costs of connection amounts to the “unjust enrichment” of the ratepayers.
Elmer maintains that the lawsuit means that the power plant can never be built. Elmer points out that:
- If Invenergy wins, Invenergy would get to shift hundreds of millions of dollars in costs onto New England electricity ratepayers. This would be illegal, because it would violate the ISO Tariff that must be followed by every electricity generator in New England. And the EFSB would be very unlikely to grant a permit under those circumstances.
- If Invenergy loses, Invenergy would be force to spend these hundreds of millions of dollars itself; this is something that Invenergy is probably unable to do, and something which Invenergy has already told the ISO it won’t do before getting its EFSB permit.
A show-cause hearing had been tentatively scheduled for December 18 at the end of the Open Meeting, but that date seems highly unlikely, as Invenergy’s lawyers indicated that they would need more time to prepare. The show-cause hearing, when scheduled, will take up the issue of the NIT water deal and the interconnection costs lawsuits.
At a Hearing that took place before the Open Meeting, the EFSB decide on four motions.
1. The Town of Burrillville filed a Motion Seeking an Order of the EFSB Requiring an Independent Environmental Impact Document and Appointing an Independent Environmental Expert to Evaluate the Adverse Environmental Impacts of Invenergy’s Proposed Power Plant.
2. Invenergy filed a Motion for Protective Treatment of Confidential Information contained in an attachment to the Supplemental Testimony of John Niland.
3. The Town of Charlestown filed a Motion for Clarification/Instructions and/or for an Extension.
4. The Town of Charlestown filed a Motion for Funding as an Affected Community.
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