Invenergy has sent a letter to the Federal Energy Regulatory Commission (FERC), claiming that delays in the permitting process before the Rhode Island Energy Facilities Siting Board (EFSB) are “due in large measure to the unceasing, and in Clear River’s view, entirely uninformed and harmful opposition by a few well-funded ‘just say “no” to any gas-fired generation development in New England’ groups.”
To support their claim, Invenergy’s lawyers cite a blog post from Conservation Law Foundation (CLF) Senior Attorney Jerry Elmer in which Elmer called Invenergy’s $1 billion fracked gas and diesel oil burning power plant a “zombie.”
Note that Invenergy lawyer Alan Shoer used similar arguments before the EFSB in November, claiming that opposition to the plant has caused delays that have resulted in Invenergy being disallowed from participation in the New England energy market. EFSB board member Janet Coit objected to Shoer’s characterization, saying that the EFSB is not responsible for the application’s delay, and that the fault lies with Invenergy.
This morning lawyers from CLF and the Town of Burrillville sent a letter to the EFSB asking the board to take administrative notice of Invenergy’s claims before FERC. “Administrative notice” is a legal term that means that the EFSB would consider the document to be relevant to the pending case and be able to use the contents of the document as evidence.
The letter is unusually blunt. In thee middle of page four, for instance, Invenergy’s conduct is called “the very definition of bad faith.” On page five, Invenergy’s Director of Development John Niland is accused of sitting silently at counsel table while his lawyer made statements that Niland knew at the time were not true.
But its Invenergy’s contention that delays in the siting process were caused by opponents that draws the most ire. In the letter, CLF and Burrillville note:
The longest single delay in this Docket occurred on October 13, 2016 – a year after the docket was opened – when the EFSB issued Order 103 suspending the docket until Invenergy had a water plan. The reason for this suspension was that Invenergy had the bad judgment to file a permit application with the EFSB before it (Invenergy) had a firm water contract.
The EFSB has already recognized that Invenergy’s delays have been caused by Invenergy itself. See November 27, 2017 EFSB Hearing Transcript, page 91, lines 8-23: “I think the delays in the permitting process are in relation to the way it’s been handled. It was a full year after the application was submitted that we ended up, without your objection, suspending . . . We suspended the process because you didn’t have a water plan. . . So just for the record, I do not think the delays in the permitting process are about the way the Board has handled things but about the way that you’ve handled things.” (Director Coit speaking; emphasis supplied.)
“CLF is flattered that Invenergy told the Federal Energy Regulatory Commission that CLF is responsible for the permitting delays at the EFSB, but Invenergy is mistaken,” writes Jerry Elmer. “The permitting delays are a result of Invenergy’s ham-fisted mistakes, like filing its permit application before it had a water source for its plant, and now trying to shift hundreds of millions of dollars in costs to Rhode Island ratepayers. [As to water source, see attached letter, p 2. As to transfer of costs to ratepayers, see p 3-5.]
“In its January 4 filing at the Federal Energy Regulatory Commission, Invenergy actually blamed CLF for the permitting delays at the EFSB, but documents from the ISO, the operator of New England’s electricity grid, tell a different story. According a letter that the ISO sent to Invenergy barring Invenergy from even participating in the ISO’s next auction, it is Invenergy’s own repeated mistakes and failures that have caused Invenergy’s delays. Invenergy should not blame CLF for Invenergy’s own mistakes.
“The letter that CLF and Burrillville are filing with the EFSB today show that there are at least two problems with Invenergy’s current lawsuits at FERC [Federal Energy Regulatory Commission] seeking to shift hundreds of millions of dollars in costs to Rhode Island ratepayers. First, the effort is illegal; FERC requires Invenergy, not ratepayers, to pay these costs. Second, Invenergy lied to both the Rhode Island Public Utilities Commission and the EFSB when Invenergy told both those agencies that its plant would have no costs for ratepayers. Why can’t Invenergy stop lying to the people of Rhode Island?”
Jerry Elmer had an oped in the Projo this weekend talking about Invenergy’s lawsuits and the problems the company is facing.
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