CLF issues a flurry of Motions before the EFSB in Invenergy case

Conservation Law Foundation (CLF) issued a flurry of motions Monday morning, ahead of the Energy Facility Siting Board (EFSB) hearings for Invenergy‘s $1 billion fracked gas and diesel oil burning power plant, set to resume next week. The EFSB is the state agency that will ultimately decide the fate of Invenergy’s power plant, by either issuing a permit to build,

November 19, 2018, 10:57 am

By Steve Ahlquist

Conservation Law Foundation (CLF) issued a flurry of motions Monday morning, ahead of the Energy Facility Siting Board (EFSB) hearings for Invenergy‘s $1 billion fracked gas and diesel oil burning power plant, set to resume next week. The EFSB is the state agency that will ultimately decide the fate of Invenergy’s power plant, by either issuing a permit to build, or not.

I’m going to attempt to explain each of the three motions below.

Motion of Conservation Law Foundation To Strike Ryan Hardy’s Testimony Pertaining To Air Emissions

Ryan Hardy is Invenergy’s expert witness on air quality before the EFSB. In cases before the EFSB, unlike cases in a court of law, witnesses prefile their testimony. This means that all the testimony of all the witnesses is before the EFSB, and during the hearings witnesses are merely cross examined.

In order to understand the logic of this Motion, it is necessary to understand a little bit about how energy markets work in New England. Electrical rates paid by consumers today were determined three years ago in a Forward Capacity Auction run by a non-profit called ISO New England. Power companies bid into these auctions, offering power from their turbines, and are granted Capacity Supply Obligations (CSOs). These CSOs are promises from owners of power plants that they will deliver electricity into the grid for the price promised three years in the future.

Invenergy anticipated having a CSO for both of their proposed power plant turbines. At this time, they have none. The one they did have was terminated by ISO New England, and Invenergy is currently challenging that cancellation before the Federal Energy Regulatory Commission (FERC).

Ryan Hardy, Invenergy’s carbon-emissions expert witness, calculated his air mission impacts based on the idea that Invenergy would at this point have CSO’s for both its turbines. This is not the case and has never been the case.

Therefore, maintains Jerry Elmer, senior attorney at CLF, Hardy’s testimony pertaining to air admissions, should be stricken from the record because “there is no basis in the Record for Mr Hardy’s testimony pertaining to air emissions.”

Elmer explains:

“As Mr Hardy explains, this Tariff section is the ISO’s so-called ‘must offer rule.’ Resources that have a Capacity Supply Obligation (CSO) are obligated to offer energy into both the Day Ahead and the Real Time Energy Markets every one of the 8,760 hours of the ISO’s Operating Year. Mr Hardy’s calculations of air emission effects (including CO2, NOx and SO2) were based on Invenergy having a CSO for all 1,000 MW of its project – and therefore being obligated to offer energy every hour of the year and then actually clearing many hours of the year.

“We now know that Invenergy does not have a CSO for either turbine. Without a CSO, Invenergy has no obligation to offer energy into the ISO market for any hours of the year, let alone for every one of the 8,760 hours in the Operating Year; and there is no indication in the record either of how often Invenergy might offer energy or of how often Invenergy might clear. That is, there is no basis in the Record for Mr Hardy’s testimony pertaining to air emissions.

“CLF anticipates that Invenergy may seek leave to file supplemental testimony to account for this obvious problem. CLF would object to any such request. This case is more than three years old, and Invenergy has had more than enough time to get its (metaphorical) ducks in a row. The EFSB, the EFSB’s staff, and the parties should not be forced into more delays on account of Invenergy’s bad planning.

“The short of it that Mr Hardy’s testimony pertaining to putative, supposed air emission effects of Invenergy’s proposed plant is now without foundation, and should be stricken.”

Motion of Conservation Law Foundation for the EFSB To Take Administrative Notice of A Massachusetts CO2 Regulation

During the cross-examination of Invenergy’s carbon-emissions expert witness Ryan Hardy, the issue of consumption-based accounting versus production-based accounting was brought up. In calculating the effect of Invenergy’s proposed power plant on air quality, Hardy’s calculations are consumption based, not production (aka generation) based. As CLF expert witness Timmons Roberts explained:

“In the electricity sector, there is a crucial difference [between production and consumption based accounting]. The six New England states have a single, unitary electricity grid. Rhode Island demand accounts for only about 6 percent of New England’s aggregate electricity load. Therefore, if you use consumption-based accounting, and you build a fossil fuel power plant here in Rhode Island, by means of an accounting trick, you account for 94 percent of the carbon emissions against other states’ goals; that is, these emissions are considered as being from ‘out of state’ and those emissions then disappear from our ledgers. In contrast, when you use production-based accounting, you have to account for the carbon emissions produced or created here in Rhode Island. I believe that production-based accounting is the correct method to use.”

During his testimony, Hardy maintained, incorrectly, that “Massachusetts [has) chosen consumption-based accounting as it relates to carbon – measuring the impact of carbon emissions.”

When Hardy said this, CLF attorney Elmer asked the stenographer to take note.

When Hardy repeated his assertion that Massachusetts uses consumption-based accounting, CLF, “asked the EFSB to take administrative notice of the Massachusetts Global Warming Solutions Act (GWSA), regulations promulgated in the wake of the Kane decision, and the fact that those regulation use production-based accounting, not consumption based accounting, as Mr Hardy had incorrectly testified.”

CLF Chair Margaret Curran asked CLF to provide a hard copy of the GWSA, and this motion is CLF’s attempt to satisfy that request.

Elmer writes:

“The attached Massachusetts greenhouse gas regulation sets both total CO2 emissions limits for the aggregate of all electricity-generating power plants within the Commonwealth of Massachusetts (Section 5(a)) and for each separate, individual electricity-generating power plants within the Commonwealth of Massachusetts (Section 5(b)). This is the definition of production-based accounting provided by Mr Hardy.”

Elmer concludes:

“The short of it is this. The attached Massachusetts GWSA regulation uses production based accounting. The regulation was challenged in court by fossil fuel generators (NEPGA). NEPGA lost the argument and the [Massachusetts Supreme Judicial Court] affirmed the regulation.

“The Massachusetts regulation that CLF is today providing to the EFSB, which provides for production-based accounting of CO2 emissions from generators within the Commonwealth, was promulgated August 11, 2017, more than a year before Mr Hardy’s testimony. NEPGA was decided September 4, 2018, also before Mr Hardy’s testimony.

“CLF has no evidence to show that Mr Hardy deliberately sought to mislead the EFSB.

“Nevertheless, Mr Hardy’s testimony was wrong.”

Motion of Conservation Law Foundation for the Full Admission of Invenergy’s November 9, 2018 FERC Filing

CLF Senior Attorney Jerry Elmer has, over the course of the hearings before the EFSB, maintained that Invenergy lies. In his opening statement, back in April, Elmer listed these lies and concluded, “even if a power plant were needed, which it is not, this would not be the company to build the plant because you can’t give a permit to a company that can’t be honest with the ISO, with the EFSB, and with the public.”

Elmer discussed Invenergy’s dishonesty at the last hearing on October 31 as well, noting that a document known as the QDN (Qualification Determination Notification) “provides evidence of the degree to which Invenergy has misstated facts to the EFSB, the parties, and the public.”

The FERC filing CLF wants admitted into evidence before the EFSB provides more evidence of Invenergy’s dishonesty, maintains CLF.

Elmer writes:

“Stunningly, Invenergy’s November 9 FERC filing was filed and served more than a week after the EFSB hearing of October 31 at which Invenergy’s dishonesty had been addressed at length. Invenergy’s November 9 Filing states unequivocally that the EFSB permit at issue in this Docket is ‘the only gating item for the Project.'”

That is, Invenergy is telling FERC that the only obstacle preventing Invenergy from building their power plant are the hearings before the EFSB.

This, says Elmer, is not true.

Invenergy failed to mention to FERC that:

  • there is a separate hearing before the EFSB on the pertaining to the power lines needed to connect the proposed power plant to the grid, hearings that have yet to begin
  • there is a need for a Major Source Air Permit under the federal Clean Air Act and that “as of November 9, 2018 no draft Major Source Air Permit had yet been issued, let alone a final permit” and
  • there is a need for a Wetlands Alteration Permit from the Rhode Island Department of Environmental Management (DEM). As of November 9, 2018, DEM did not believe Invenergy’s application to be complete.

Thus, this motion seeks to bring before the EFSB more evidence of Invenergy’s habitual dishonesty with the ISO, with the EFSB, with the public, and now with FERC.

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