Last week, Invenergy revealed that the company is “going to file a significant change in plans” for their proposed $1 billion fracked gas and diesel oil burning power plant aimed at the pristine forests of north west Rhode Island, writes Jerry Elmer, senior attorney at Conservation Law Foundation (CLF), one of the two lawyers (along with Michael McElroy for the Town of Burrillville) opposing the plant’s construction before the Energy Facilities Siting Board (EFSB).

Though the plans have yet to be filed, Invenergy informed the lawyers in the case of the change in plans, including the lawyer for the EFSB.

“Invenergy’s new plan calls for Invenergy not to build a new access road for the plant, but instead to expand the existing access road,” writes Elmer. “Because the new plan will involve several new permits, the new plan is very likely to cause additional delays in the main EFSB proceeding. For example, the new plan will require Invenergy to file a new wetlands alteration permit with the Department of Environmental Management (DEM). Keep in mind that DEM has not yet acted on Invenergy’s original wetlands alteration permit, filed in early 2015, because DEM does not yet consider the original application to be complete!

“CLF lawyers are carefully considering how to respond to this (outrageously) belated change on Invenergy’s part,” continues Elmer, adding, “We are keenly aware of the fact that delay now only helps Invenergy. The case is in an excellent posture today, with Invenergy having failed completely to show any need for the new plant, but who knows – if Invenergy delays the case long enough, Invenergy may clear in some future ISO auction a decade in the future!”

EFSB hearings continue this week on Wednesday and Thursday. Hearings are scheduled to start at 10 AM and are open to the public: 89 Jefferson Boulevard, Warwick.

At the conclusion of the hearings last week, CLF was still cross-examining Invenergy’s expert witness Ryan Hardy. According to Elmer the cross-examination will resume on Wednesday morning and likely take most of all or all of the morning.

“Last week, EFSB members showed a keen interest in the amount of surplus capacity the ISO has acquired in the three Forward Capacity Auctions that have been held since the Invenergy application was filed,” writes Elmer. “As you know, CLF is very pleased that the EFSB is focusing attention on this issue, because the auction results strongly show that Invenergy’s proposed power plant is not needed. When I resume my cross-examination of Mr Hardy on Wednesday morning, I will walk him through the actual ISO auction results of every auction since the Invenergy application was filed.

“Directly after Mr Hardy is done being cross-examined, the next witness will be CLF’s expert Robert Fagan,” continues Elmer. “Between the Public Utilities Commission (PUC) proceeding on Invenergy and the EFSB proceeding, Mr Fagan has submitted five separate sets of testimony. (For your reference, I attach Mr Fagan’s most recent testimony in the EFSB proceeding – this was filed just a few weeks ago, on December 14, 2018.) After Mr Fagan, we will hear (very, very briefly) from the union’s witness, Marc Vatter. The final witness on need will be Burrillville’s expert, Glenn Walker. We cannot be sure, but my belief and expectation is that Invenergy’s lawyer, Michael Blazer, will both take a long time and be extremely harsh with both Mr Fagan and Mr Walker. After all, the key issue in the case is whether (or not) the plant is needed; the credibility of Invenergy’s witness (Mr Hardy) is shot; so Invenergy’s best hope now is to undermine the credibility of the expert witnesses who say that the plant is not needed. In this regard, Invenergy belatedly sent us no fewer than ten new exhibits that Mr Blazer wants to introduce this week to use in his cross-examination of Messrs Fagan and Walker! (CLF did not object, as we are eager to have the full facts come out on the issue of need.)

“During my cross-examination of Burrillville’s expert witness on need, Glenn Walker, I will have one very brief section in which I am discussing confidential material and the EFSB will have to clear the hearing room,” concludes Elmer.

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