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Invenergy consultants appear to have misrepresented themselves to gain access to data, then misrepresented the data to the EFSB



At last week’s Energy Facilities Siting Board (EFSB) hearing to decide the fate of Invenergy‘s proposed $1 billion fracked gas and diesel oil burning power plant, ESS Group senior scientist Jason Ringler, contracted by Invenergy to testify about the ecological impacts of the plant were it to be licensed and built, seemed like a compelling witness.

One week later, that all fell apart spectacularly.

At issue was forest connectivity, that is, the way wildlife moves through the world. Smack dab in the middle of where Invenergy wants to build their power plant is what Conservation Law Foundation (CLF) witness Scott Comings called the “best example left of this kind of habitat between Boston and Washington DC.” If built, the power plant would block a crucial “pinch point” which would prevent species from moving through the forest, disrupting breeding, feeding and predator/prey relationships.

Invenergy’s witness, Jason Ringler, maintained in his testimony that the area wasn’t a choke point and that the power plant would have minimal and easily mitigated impacts. The area, which has some roads and development already, has long lost the ability to allow the safe traversal of wildlife maintained Ringler in his testimony.

To set up Ringler’s testimony, Invenergy attorney Elizabeth Noonan introduced a set of six maps. [note]All documents in this case were supposed to be introduced by April of last year, but neither Burrillville’s lawyer, Michael McElroy nor Jerry Elmer raised any objections.[/note]

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Noonan asked Ringler to explain the various maps he had produced, based on data he and his company, ESS, had acquired from The Nature Conservancy (TNC). Ringler disagreed with the opinions of TNC Associate Director Scott Comings.[note]Unlike court cases you may be used to, all testimony presented before the EFSB is pre-filed in written form and presented months or even years in advance of the hearings. Lawyers then cross-examine the witnesses. Ringler’s pre filed testimony can be accessed here. Comings pre-filed testimony can be accessed here and here.[/note]

Time and again Ringler maintained that he wasn’t “interpreting” the data he found on TNC’s Online Portal, which is available to anyone to use. Ringler said he was just presenting the data as it was collected by TNC. “There was no interpretation involved. There was just the matter of fact,” said Ringler.

One figure that would become very important is presented below. Pictured are two nearly identical maps, side by side, with one big glaring difference, the red blob (or blotch). The map on the left was produced by TNC, the map on the right by Ringler’s company ESS. That large red blotch, said Ringler, shows that an existing road is a large blockage preventing species from freely moving through the area.

Describing the red blotch, Ringler repeatedly said that he got the information indicating its presence off of TNC’s Online Portal.

“Did this red blob come from The Nature Conservancy’s portal?” asked EFSB member Janet Coit, one of the three people deciding Invenergy’s fate.

“Yes,” said Ringler. “The data came from them.”

Turns out that wasn’t exactly true.

When Scott Comings took the stand this Thursday, CLF Senior Attorney Jerry Elmer was able to ask him about the maps, the data, what the data means and where it came from.

“Did the information behind this red blotch originate with The Nature Conservancy?” asked Elmer.

“It did,” replied Comings.

“Is the information conveyed by this red blotch publicly available on the TNC Portal?” asked Elmer.

“It is not part of the TNC Portal,” replied Comings, contradicting what Ringler had maintained a week earlier.

“Has the information conveyed by this red blotch been peer reviewed?” asked Elmer.

“It has not,” replied Comings

“Has the information conveyed by this red blotch been ground truthed by TNC?” asked Elmer.

“It has not been ground truthed,” replied Comings.

“Is that why the information conveyed by this red blotch is not publicly available on TNC’s Portal?” asked Elmer, dropping a bombshell.

“That is correct,” replied Comings.

“Do you have an understanding as to how Invenergy’s consultant, ESS, obtained this information from TNC?” asked Elmer.

“I do,” replied Comings. “They reached out to some of our regional scientists in Boston.”

“Was ESS truthful and honest with TNC in explaining what they were going to do with this information?” asked Elmer.

“Objection!” interrupted Invenergy’s lawyer Noonan. “Hearsay!”

Elmer then produced an email chain between TNC and ESS that documented that ESS had accessed TNC data under false pretenses.

“Did ESS tell TNC that it was interested in ‘screening a potential property for preservation?'” Elmer asked Comings, when EFSB Chair Margaret Curran overruled Noonan’s objection.

“That’s correct,” replied Comings.

“Now, when TNC provided to ESS the data that appears here as the red blob, did TNC specifically tell ESS that this was done as ‘a quick and dirty analysis’?” asked Elmer.

“That’s correct,” replied Comings.

“Did TNC specifically tell ESS that the information in this red blob had not been peer reviewed?” asked Elmer.

“That’s correct,” replied Comings.

“Did TNC specifically tell ESS, Invenergy’s consultant in this case, that therefore, ‘major decisions’ should not be based on this?” asked Elmer.

“That’s correct,” replied Comings.

“If ESS had honestly told TNC why it was requesting this information, would TNC have provided it?” asked Elmer.

“Objection!” said Noonan.

“I’ll allow it,” said Curran.

“The answer to that is that I think we would have provided it but with a lot more caveats,” said Comings. “We are an organization that freely shares our information. We’re not into games of hiding information. But it’s very important to also know the parameters for which the information is to be used.”

This was not the only issue with Ringler’s testimony. Time and again Elmer asked Comings to correct Ringler’s misinterpretation of TNC data. Ringler maintained that the data had changed over time. Comings showed that it had not. Ringler said that his new maps, based on TNC data, were more accurate. Comings showed that Ringler’s maps were simply reproduced with different colors and that the underlying data was the same.

It was grim.

“Mr Ringler said Mr Comings was wrong,” said Jerry Elmer to me after the conclusion of the day’s hearings. “As a matter of substance, it turns out that Mr Comings’ testimony, that this is a terrible, terrible place to put a power plant… [has] been correct all along. The matters of existing blockages to forest connectivity that Mr Ringler claimed were there [are] in fact are not there. [Ringler] had misread, misunderstood, [and] misinterpreted data from The Nature Conservancy.

“So as a matter of substance, it turns out that Invenergy’s witness was wrong, CLF’s witness was right, and yes, just as CLF’s witness has said all along, this is a uniquely bad place to locate a new power plant.”

But there’s more. Invenergy’s consultant group, ESS, had misrepresented themselves to The Nature Conservancy to gain access to data that Ringler, working on behalf of Invenergy as an expert witness, then misrepresented to the EFSB.

“Invenergy’s experts… lied and misrepresented what they were doing in order to get information from The Nature Conservancy that otherwise wasn’t available on The Nature Conservancy Public Portal,” said Elmer to me. “Invenergy’s witness … [was] proved wrong about how bad it would be to locate a power plant here, [and] they lied and cheated and misrepresented in the process of doing that.

“It makes Invenergy look dishonest, because in fact, that’s exactly what they are,” said Elmer.

In watching the hearings, I mentioned to Elmer that I had never seen the EFSB members so active in questioning a witness.

“I think you’re correct,” said Elmer. “I think Scott Comings was a very, very credible witness. Every member of the board had questions for him. There was lively interest, lively questions from the board, and frankly, I think the board got it today. I think they really understood the main thrust of Scott Comings’ testimony.

“The Nature Conservancy almost never takes positions on controversial matters and almost never in litigation. The reason they did it in this case is because the issue is so important.”

The EFSB hearings will continue in March and are expected to run into April.

Here’s a sampling of video featuring testimony from Scott Comings and Jason Ringler:

Elizabeth Noonan

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Steve Ahlquist is Uprise RI's co-founder and lead reporter. He has covered human rights, social justice, progressive politics and environmental news for nearly a decade.