Conservation Law Foundation (CLF) today filed two short documents with the Energy Facilities Siting Board (EFSB). Both documents are about Invenergy‘s $1 billion fracked gas and diesel oil burning power plant aimed at the forests of northwest Rhode Island, which CLF and the Town of Burrillville are fighting against.

In the first document CLF is asking the EFSB to take “administrative notice” of a press release issued by ISO New England last Wednesday with the results of Forward Capacity Auction-13 (FCA-13) which was held last week. “Administrative notice” means that a fact or a document comes into evidence in the case, parties (like CLF and Burrillville) can make use of the fact or document in their arguments to the EFSB, and the EFSB can use the fact or document in its final decision.

As CLF Senior Attorney Jerry Elmer shows here, the “results of the ISO’s Forward Capacity Auction … show once again – strongly and unequivocally – that Invenergy’s proposed fracked gas and diesel oil power plant is not needed.”

“Invenergy will have a bit of a dilemma with this filing by CLF,” said Elmer. “If Invenergy objects to CLF’s motion, the EFSB may hear oral argument on it, which will only serve to call lots of attention to the press release, to the FCA results, and how much Invenergy is not needed. On the other hand, Invenergy can hardly agree with the five bullet points that straddle pages 1 and 2 of the motion; these bullet point s walk the EFSB through the actual auction results that show that Invenergy is not needed. The bottom line here is that this motion is very short; the EFSB members will read it and get the point; and – if Invenergy objects – it will only be calling attention to the damning facts.”

The second document concerns last week’s motion by Invenergy to strike the testimony of CLF’s expert witness on need, Robert Fagan, on the grounds that it is not relevant. Fagan presented testimony that Invenergy’s power plant is not needed to keep the lights on in Rhode Island in short, medium or long-term. Fagan used ISO New England data to support his conclusions.

“Invenergy’s motion is silly, bordering on fatuous,” said Elmer, “and there is almost no chance that the EFSB will grant it.”

Presuming that Elmer is correct about the likelihood that the EFSB will reject the motion, why did the lawyers for Invenergy take the time, trouble, and expense to present a 23-page motion that stands almost no chance of success?

“I believe that the reason is that Invenergy now believes that there is a good chance that the EFSB will deny its permit application,” said Elmer. “Invenergy is now laying the groundwork for a possible appeal after a permit denial by the EFSB. (That is why Invenergy’s motion cites to so many Rhode Island Supreme Court cases pertaining to the standards of admission for expert testimony.) As I have mentioned before, while the losing side at the EFSB does have a right to an appeal, such appeals rarely succeed. That is because the standard of review used by the court is very, very deferential to the EFSB.

“The short of it is that Invenergy is not going away and is, in fact, preparing now to appeal a possible permit denial by the EFSB.”

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