If the EFSB decides against them, will Invenergy appeal to the RI Supreme Court?

Michael Blazer
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Hearings continued last week at the Energy Facilities Siting Board (EFSB) to determine the fate of Invenergy‘s proposed $1 billion fracked gas and diesel oil burning power plant aimed at the pristine forests of northwest Rhode Island. The two days of hearings were focused on the issue of whether or not the power plant is actually needed. Last week’s hearings began by finishing up the cross-examination of Invenergy’s expert witness Ryan Hardy and ended with the cross-examination of Conservation Law Foundation (CLF)’s expert witness Robert Fagan.

[Note: Unlike court cases people may be familiar with, witnesses before the EFSB pre-file their testimony and undergo a cross-examination from opposing council. All the testimony of the witnesses is available to read, and the cross-examination is the focus of the hearings.]

As is to be expected, the two men had decidedly different opinions on whether or not the proposed power plant is needed. Invenergy witness Hardy was cross-examined by CLF Senior Attorney Jerry Elmer and the attorney for the town of Burrillville Michael McElroy. Not only was it revealed that Hardy was wrong time after time over the four years that he has made predictions about the need for the proposed power plant, often times Hardy seemed evasive. Invenergy attorney Michael Blazer, who flies in from Chicago for these hearings, spent a good amount of time on redirect trying to salvage Hardy’s testimony.

Robert Fagan, on the other hand, seemed to have no problem answering directly and factually the questions Blazer put to him on cross-examination. Fagan repeatedly told the EFSB that his answers were not based on his opinions, but on the publications, forecasts, and figures prepared by ISO New England, the non-profit that manages the New England electrical grid. Fagan did so well, in fact, that neither CLF nor the Town of Burrillville took the time to re-direct. Fagan’s testimony was surprisingly short and direct.

“Mr Blazer walked Mr Fagan through the major portions of Fagan’s most recent testimony and tried, but failed, to poke holes in it,” said Elmer. “Thus, the net result of Mr Blazer’s failed effort was to emphasize to the EFSB members all of Mr Fagan’s main points on why the plant is not needed.”

Elmer also brought up the possibility that Invenergy may be preparing to appeal to the Rhode Island Supreme Court should the EFSB ultimately rule against granting Invenergy a permit for their proposed power plant:

“We saw something new at the EFSB when Mr Blazer was cross-examining Mr Fagan,” said Elmer. “I believe that Invenergy now believes (possibly for the first time) that the EFSB may deny the permit application, and that Invenergy is preparing for a possible appeal. Yesterday, when Mr Blazer was cross-examining Mr Fagan, several times I just said ‘Objection’ (with no reason stated, because the reason for the objection was so blindingly obvious) and Chairperson Margaret Curran immediately said, ‘Sustained’ before I was even finished (because the reason for the objection was so blindingly obvious) – but Mr Blazer insisted that the grounds for the objection be stated for the record. This suggests that Invenergy anticipates that it could lose the case; that it plans to appeal an adverse decision; and is carefully making a record in the EFSB of errors that could form the basis of an appeal. That is why Mr Blazer asked that the exact reason for the objection be stated for the record – to make a record for a possible appeal.

“Under the Energy Facility Siting Act, an appeal from an EFSB decision goes directly to the Rhode Island Supreme Court. However, the legal standard that the Supreme Court applies in reviewing appeals from the EFSB is very, very deferential to the EFSB. For that reason, it is very difficult to get an EFSB decision reversed on appeal. (N.B.: This fact would also apply to opponents in the event that the EFSB grants a permit to Invenergy.) Thus, if the EFSB denies a permit to Invenergy, I am fairly optimistic that Invenergy would not be able to get the denial reversed in the Rhode Island Supreme Court. Nevertheless, it is revealing that Invenergy may, for the first time, sense that it could lose the case.

Because of the lengthy amount of time spent on cross-examining Hardy and Fagan, the final schedule of the hearings has been altered, again.

Next week, the EFSB will meet on Tuesday, Wednesday and Thursday. On Tuesday, January 22, starting at 10am (and ending no later than 3:30pm), witnesses on air emissions will be heard as well as someone from the Rhode Island Department of Health on its Advisory Opinion. On Wednesday and Thursday, January 23 and 24, Glenn Walker, Burrillville’s expert witness on need will be heard. Wednesday’s hearing will start at 10am and Thursday’s hearing at 1 pm. Both may run until 4:30pm or later. “Mr Walker is deeply knowledgeable about energy markets and ISO procedures,” says Elmer. “It will be interesting to watch Invenergy’s lawyer, Mike Blazer, try to undermine Mr Walker’s testimony.”

Scott Comings, CLF’s expert witness on non-carbon environmental impacts, including on biodiversity and forest connectivity, is now scheduled for Wednesday, January 30. As of now, Invenergy’s project manager John Niland is scheduled for Thursday, February 7. Additional Final Hearing dates are January 31, and February 5 and 6.

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About Steve Ahlquist 1034 Articles
Steve Ahlquist is a frontline reporter in Rhode Island. He has covered human rights, social justice, progressive politics and environmental news for half a decade.Uprise RI is his new project, and he's doing all he can to make it essential reading.atomicsteve@gmail.com