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Invenergy blames its failures and delays on power plant opponents in FERC filing



Invenergy‘s proposed $1 billion fracked gas and diesel oil burning power plant is in trouble. But instead of taking responsibility for its own poor decisions, lack of honesty and bad planning, Invenergy is blaming “opponents” of the project, including this author and UpriseRI, of delaying the permitting of the power plant.

On September 20, in the midst of the Energy Facility Siting Board (EFSB) hearings to determine the fate of the power plant, Invenergy dropped a bombshell: For the first time in its 22 year history, ISO-New England cancelled a Capacity Supply Obligation (CSO). CSOs are essentially promises to provide energy into the electrical grid at an agreed upon price and at an agreed upon time. Without a power plant, Invenergy cannot be counted on to keep that promise, so ISO-New England cancelled their CSO.

Invenergy is now contesting ISO-New England’s decision before the Federal Energy Regulatory Commission (FERC). In its filing, Invenergy makes some pretty startling claims, and subtly rewrites history to cast itself as the victim, rather than as a perpetrator foisting an unwanted and unneeded power plant.

“… ISO-NE’s September 20 Filing has quite unintentionally given new life to the opponents of natural gas power plant development, the parties responsible for the very delays upon which ISO-New England’s filing ultimately is based,” writes Invenergy in their filing. “Aside from it further delaying the EFSB proceeding in the short-term thereby contributing to ISO-NE’s decision to terminate Clear River’s CSO in furtherance, unintentionally, of the Project’s opponents’ objectives, over the longer term, the filing will send an unintended message to all those parties who oppose gas-fired generation in general… that, as long as they can cause enough of a ruckus, they can wait out the Project Sponsor and effectively let the Tariff do their bidding.”

(Loosely speaking, the “Tariff” refers to the set of rules by which ISO and the electrical grid is managed.)

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Invenergy is not just arguing their particular case. They are asking FERC to look at the public’s response to fossil fuel projects in general, and asking the Commission to rule in a way that minimizes the effectiveness of local resistance to new fossil fuel infrastructure nation wide.

“To be sure, the issue is not whether Clear River has experienced an especially litigious permitting process in today’s environment,” writes Invenergy in their filing, “but that its opponents’ tactics are increasingly common and, as such, these types of extensive delays are now the norm in New England and elsewhere. It is essential, then, that the Tariff be applied in a manner that recognizes that such delays are the norm, and not the egregious case warranting termination.”

Invenergy rewrites the history of opposition to its proposed power plant power plant when it claims:

“Initial local support resulted in a tax and property value agreement with the Town of Burrillville (which was executed in November 2016), and on March 6, 2015, Clear River entered into a letter of intent (LOI) with the Pascoag Utility District (PUD) to develop a water supply plan for the project; then, on September 25, 2015, Clear River and the PUD entered into a second LOI to develop a more detailed plan to design and install a treatment system to reactivate a contaminated local well for Clear River’s sole use. However, almost a year later, after an aggressive campaign by local and outside parties, the PUD Board voted to terminate the LOI in August of 2016. This, coupled with delays in obtaining an alternate water source (resulting from the same opposition efforts) created an approximately one year delay in the EFSB permitting process.”

In truth, the “property value agreement” Invenergy entered into with the Town of Burrillville was a tactic of resistance, not “local support.”

When the Burrillville Town Council presented the tax treaty with Invenergy to to people of Burrillville, they presented it as a way to get the money they needed to fight the company during the EFSB hearings and in court if necessary. As part of the negotiations, Invenergy began to pay the Town money, money the Town plunged into the legal battle against the proposed power plant.

Attorney Michael McElroy, who negotiated the tax treaty and is representing the Town of Burrillville before the EFSB, said that the opposing the power plant and signing a tax treaty were not inconsistent actions and would not be seen that way.

“I want to make it… clear that I see no inconsistency between entering into these agreements and dead set opposition to the plant,” said McElroy.

In their filing with FERC, Invenergy is trying to cast the tax treaty as proof that the project once had support in the Town of Burrillville, but this is not the case.

In the filing, Invenergy hints that the board members of the EFSB may be overworked and not up to the task of processing the application quickly, writing, “The ineluctable conclusion is that overloaded tribunals oftentimes are incapable of acting quickly enough so as not to jeopardize the 39-month planning period.”

Reading the FERC filing, it is apparent that Invenergy is very annoyed with the opponents of the proposed power plant. The company notes the delays suffered when their first choice for a water source was denied them, and the difficulty the company had in finding a water source for it’s plant, difficulties they lay at the feet of opponents to the power plant. “Importantly,” writes Invenergy, “most permitting process delays are outside of a resource’s reasonable control. Certainly, the delays relevant here were beyond Clear River’s control.”

Invenergy sees the actions of opponents in denying the company water as a tactic to delay the licensing of the power plant.

“Delay, then, is the weapon of choice: delay the permitting process and you thereby jeopardize the project’s meeting the Tariff-required milestones,” writes Invenergy. “Delay enough, and failure to meet those milestones can be terminal.”

As part of their filing with FERC Invenergy included a copy of a post I wrote.

See: The competitive market has determined that Invenergy’s proposed power plant is not necessary

“Adding to the challenges is the Catch-22 facing developers like Clear River when the project’s opponents argue that permitting agencies are looking (when erroneously urged by intervenors) to view whether a project has cleared in the auction as a factor to be considered in their need determinations,” writes Invenergy, with a footnote directing people to my piece. In the footnote Invenergy explains that, “The opposition’s erroneous ‘mantra’ is that ISO-NE’s request to terminate the CSO stems from a determination that the Clear River Project is not needed… Need was not a factor considered by ISO-NE.”

But I never wrote that need was a factor considered by ISO-NE. I wrote:

Invenergy understands the question of need very well. On August 18, 2016 the company filed a brief (see here) that declared that the, “competitive market will determine whether [the proposed power plant] is necessary to meet the needs of the region.”

“ISO-New England evaluates the market and sets prices that maintain system reliability while encouraging new efficient generation in the zones where needed,” writes Invenergy in their brief. With the cancellation of the CSO for Turbine 1 and Turbine 2 being disallowed in the upcoming auction, it looks like the competitive market has spoken.

It was Invenergy that implied being granted a CSO by ISO New England was proof that their proposed power plant is needed, not me. I merely quoted them accurately.

You can read Invenergy’s FERC filing here.

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