Jerry Elmer: The end of the Invenergy case is in sight

Invenergy‘s proposal for a $1 billion fracked gas and diesel oil burning power plant, aimed at the pristine forests of northwest Rhode Island is still before the Energy Facilities Siting Board (EFSB) and the case is now in its fourth year. Opposition to the power plant in Burrillville, where the plant is intended to be built and across the state,
Photo for Jerry Elmer: The end of the Invenergy case is in sight

Published on January 3, 2019
By Steve Ahlquist

Invenergy‘s proposal for a $1 billion fracked gas and diesel oil burning power plant, aimed at the pristine forests of northwest Rhode Island is still before the Energy Facilities Siting Board (EFSB) and the case is now in its fourth year. Opposition to the power plant in Burrillville, where the plant is intended to be built and across the state, stands firm. Equally firm, it appears, is Invenergy’s intention to build the plant.

Jerry Elmer, senior attorney at Conservation Law Foundation (CLF) is one of the lawyers litigating against the power plant before the EFSB. The other attorney is Michael McElroy, litigating on behalf of the Town of Burrillville.)

Elmer provided a set of insights into the case that is the basis of this piece.

“First, the good news,” writes Elmer. “Opponents of Invenergy start the new year in a better position than we have been in since the case started [on] October 29, 2015. I say this for at least four reasons:

“First, on September 20, the ISO – the operator of the New England electricity grid – terminated Invenergy’s Capacity Supply Obligation (CSO) over Invenergy’s very strong objections.

“Second, on September 28, the ISO disqualified Invenergy from even participating in the ISO’s next Forward Capacity Auction (on February 4). Taken together, these two actions by the ISO signaled in an unmistakable way that Invenergy’s electricity is neither needed nor wanted for keeping the New England electricity grid reliable. This is important because the most important single issue in the case is whether the proposed plant is needed. If the plant is needed, it would be difficult to deny it a permit; conversely, if the plant is not needed, it will be difficult to grant it a permit.

“Third, on October 31, the EFSB voted to reject the Advisory Opinion it had received from the Rhode Island Public Utilities Commission (PUC), which Advisory Opinion stated that the Invenergy plant was needed and cost effective. This EFSB decision was indicative of a growing skepticism on the part of (at least some) EFSB members as to whether the proposed plant is needed. Thus, these three factors together show both that the plant is not needed and that the EFSB seems to understand that fact.

“And there is a fourth reason for optimism as well: The oral argument presented on October 31 by Burrillville’s lawyer, Michael McElroy, in support of Burrillville’s motion to reject the PUC Advisory Opinion. That oral argument quoted the many, many, many times that Invenergy has argued that the fact that it had a CSO from the ISO meant that the plant was needed. The inescapable conclusion to be drawn from Invenergy’s own repetition of this assertion was that – now that the CSO has been cancelled – it is clear that Invenergy is not needed. Mike’s oral argument on October 31 obviously worked in having the EFSB vote to reject the PUC Advisory Opinion; but I believe Mike’s oral argument also worked in another very important way as well: planting the idea firmly in the minds of the EFSB members that the loss of the CSO means that the proposed plant is not needed.

“For all of the foregoing reasons, I believe it is now likely that the EFSB will vote to deny a permit to Invenergy.”

Given all this, one would think Invenergy ready to pack things in. But surprisingly, they are not.

“Here is the big surprise,” writes Elmer. “Invenergy is moving full steam ahead. This is obvious from the way Invenergy continues to pour money into the project (for example, by needlessly sending five or six lawyers to every hearing). Any possible doubt that Invenergy is moving full speed ahead was dispelled on December 18 when Invenergy filed multiple documents with the EFSB. For example, Invenergy made a minor adjustment in the base elevation of the power block (to assist with stormwater management) and made another minor adjustment is its stack height (in order to secure Federal Aviation Administration (FAA) approval for the new stack height).

“It is as surprising to me as it is to you, but Invenergy is moving ahead and really wants to get a building permit. One take-home message from this situation is that now is not a time to rest in the fight against Invenergy. Just as Invenergy is moving ahead, so must opponents continue the fight…

“Although I believe it is unlikely that Invenergy gets a permit, Invenergy’s decision to continue the case is not necessarily wacky. Invenergy started working on this proposed plant in 2014, and this EFSB docket has been going since 2015. We are now 95 percent done with the case, and the amount of money Invenergy will have to spend from here to the end of the docket is relatively small (compared to what Invenergy has spent to get to this point). Having come so far already, Invenergy may figure it is rational to see the case through to the end.”

So what’s ahead for the Invenergy proposal in 2019?

“In January, the EFSB will be heavily focused on the crucially important issue of whether the plant is needed,” writes Elmer. “The witnesses addressing need will be heard on Tuesday and Wednesday, January 8 and 9, and on Wednesday and Thursday, January 16 and 17. Because Invenergy has the burden of proof on every issue in the case, Invenergy’s witness on need, Ryan Hardy, will go first. My belief is that Mr Hardy will take all January 8 and probably run into January 9. This is true for several reasons. First, Mr Hardy has said so many things that are not true (and some that are truly fatuous) that cross-examining Hardy will take a long time as we go – slowly and lovingly – through his many mistakes, wrong predictions, and nonsense. Second, Mr Hardy is incapable of giving a concise answer. Even when a question ought to be answered by yes or no, he rambles on at length. (This is great for our side, because it makes Mr Hardy appear unreliable and evasive.) Third, Invenergy’s lawyer is likely to spend a great deal of time trying to rehabilitate Mr Hardy’s credibility after very long cross-examination by CLF and Burrillville. Burrillville’s witness on need, Glenn Walker, will go after Mr Hardy; and CLF’s witness on need, Robert Fagan, will go after Mr Walker. I am guessing that Messrs Walker and Fagan will testify on January 16 and 17.

“On January 24 and 30, witnesses on biodiversity impacts and forest connectivity issues will testify. CLF’s witness on these issues is Scott Comings of The Nature Conservancy.

“As of now, the last days of witness testimony are now scheduled for February 6 and 7 (and for the reasons I stated above, CLF is hoping that these dates will stay firm). Invenergy’s spokesperson, John Niland, will be cross-examined on these dates.

“EFSB meetings are open to the public, and your attendance is an important way to show the EFSB, reporters, and the world that there is grassroots opposition to Invenergy’s proposal to pave a forest in order to build a new, unneeded fossil fuel power plant. I encourage you to attend these sessions…

“After all the witnesses are heard, the lawyers will get about six weeks to submit Post-Hearing Memoranda. These will summarize the evidence and make legal argument about why the permit should be approved or denied. If testimony actually ends on February 7, it is likely that Post-Hearing Memoranda will be due no later than, say, March 31. After that, the EFSB will hold one or several so-called ‘Open Meetings‘ to discuss the issues in the case. At Open Meetings, the EFSB members discuss the case, but neither the lawyers for the parties nor the public speak. It is likely (but not certain) that there will be more than one such Open Meeting because the EFSB has multiple issues to discuss and vote on, including (but not limited to): Is the plant needed? Is the plant cost-justified? Would the plant have unacceptable environmental consequences? Is Invenergy’s stormwater plan acceptable? Does Invenergy have a secure water source? At the last Open Meeting, the EFSB will take a vote on whether or not to grant a permit to Invenergy.

“After the EFSB vote is taken, the EFSB staff must prepare a written Order reflecting the EFSB decision. Because the Order normally reviews all the issues in the case (and reviews the evidence on both sides of every issue), the Order can run to over 100 pages in length, and it can take some weeks for the staff to draft. It is the issuance of the Order that constitutes the technical end of the case and is the event that is appealable to the Rhode Island Supreme Court by the losing side. Assuming that Post-Hearing Memoranda are filed by the end of March, it is reasonable to expect the EFSB to hold its Open Meetings in April and have voted to grant or deny a permit by the end of April (though the actual Order reflecting the decision could be delayed for additional weeks).”

The remaining EFSB hearings will begin at 10:00 AM (not 9:30), except for January 24, which will start at 1:00 PM.  Hearings are at the PUC Building, 89 Jefferson Blvd., Warwick, Conference Room A (first floor), and are open to the public.

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