Having sat through most of the hearings at the Energy Facilities Siting Board (EFSB) concerning the licensing of Invenergy‘s proposed $1 billion fracked gas and diesel oil burning power plant aimed at the pristine forests of Burrillville, I think I’ve developed a nose for those witnesses that Invenergy’s lawyers feel most threatened by. Their zeal in going after these witnesses, such as Scott Comings, Robert Fagan, and now Anthony Zemba reveal, to my mind, a desperation on the part of the fossil fuel energy plant developer to dismiss concerns about the environmental impacts of their proposal as overblown, when in fact all evidence points towards the site chosen by Invenergy to be one of the last, best examples of its particular kind of ecosystem in New England.
Anthony Zemba was cross examined by Invenergy’s team of lawyers, lead by Attorney Elizabeth Noonan, for nearly three hours on Wednesday, and there is more to come when the hearings resume on March 20. During his cross-examination Zemba repeatedly stressed that not only is the bio-diversity of the area where Invenergy plans to construct their power plant a uniquely bad site from the point of view of its impacts on nature and bio-diversity in the region, but that the processes used by the Rhode Island Department of Environmental Management (RIDEM) and the state laws that govern the process of determining bio-diversity impacts are lacking.
Zemba is a Senior Ecologist with 30 years of professional experience in natural resource management and monitoring, and impact assessment. The EFSB, unlike courtrooms most of us understand from experience or from television, does not conduct direct testimony in person. Instead, expert witnesses pre-file their testimony in written form and they are called before the EFSB to be cross-examined by the lawyers.
Below are clips from his testimony that are quite revelatory, followed by his complete testimony.
EFSB Boardmember Janet Coit, who also serves as the State Director of RIDEM, asked Zemba what he means when he says that our laws and regulations regarding bio-diversity are “anemic.”
“In Connecticut,” said Zemba, “if there’s going to be an impact to a listed species – and by listed I mean one that fits the definition of state threatened, state endangered – if they’re going to be impacted, then you have to do an incidental take permit… and apparently Rhode Island doesn’t have that. And that’s a glaring, gaping hole when trying to protect endangered species, threatened and especially concerned species.”
“It’s your opinion that even if RIDEM issues a permit, there will be unacceptable harm to the environment?” asked Attorney Noonan.
“Yes,” said Zemba.
“And is your recommendation really a ‘no-build’ scenario?” asked Noonan.
“Uh, yes,” answered Zemba.
Part of Invenergy’s plan to mitigate the harm the construction of a power plant will inflict on the environment is for the company to invest in and conserve a larger parcel of land elsewhere where presumably there is a similar ecosystem. Zemba expressed concerns with this plan.
Noting that RIDEM has expressed interest in acquiring the site considered for purchase and conservation by Invenergy, Attorney Noonan asked Zemba, “Would that lead you to have any inkling that perhaps [the site under consideration] has value?”
“Well, it depends on what [RIDEM’s] goals and objectives are,” answered Zemba. “If it’s for hunting rabbits…”
There was laughter from Chicago-based Invenergy attorney Michael Blazer at this.
But the laughter ceased as Zemba continued, “… I don’t know what that really does for the ecology, especially considering all the species that would be lost and completely obliterated from the [site Invenergy intends to build on].”
“Are you opposed to fossil fuel plants?” asked Noonan.
“When they are sited in an area that has multitudes of threatened, endangered and special concern species in apparently some of the most biologically diverse and valuable property in the entire state, I’d be opposed to it, yes,” said Zemba.
“You’ve reached the opinion that this is the most valuable… in the state?” asked Noonan.
“Well, I’ll tell you that in my 30 years of working as an ecologist I’ve never had a site where we’ve had 17 listed species and 48 species of greatest conservation need. That was remarkable to me,” said Zemba.
“And yet at this point, no one has…” began Noonan, searching for her next question. “Strike that,” she said, giving up.
“There’s no incidental take permit at this location, correct?” asked Noonan.
“Okay. So you’re just going to write off these species?” asked Zemba.
“I’m asking the questions,” said Noonan.
“Can we go back to the incidental take? Because I have to tell you, I’ve been doing development in Rhode Island for over 25 years, [and] I’ve never dealt with that issue. Can you tell me what that is?” asked Noonan.
“I guess you’ve never dealt with it because Rhode Island doesn’t have that,” replied Zemba. “In Connecticut, if the proposal that you set forth is going to result in impacts to a state listed species, you have to do an incidental take permit. It includes an assessment of the species’ life history to see what its special habitat attributes are for that species and can they be recreated elsewhere, what other measures can you take to prevent the loss of that species and maintain the population…”
Burrillville attorney Michael McElroy and Conservation Law Foundation (CLF) Senior Attorney Jerry Elmer object to Attorney Noonan asking questions and then cutting Zemba off before he can complete his answers.
“We’re interrupting the witness in mid answer,” said Elmer. “It really is improper.”
In the next video Zemba explains his idea of how best practices in eco-compliance should be done. Of course, the Invenergy project was initially fast tracked and de facto approved by Invenergy and Rhode Island Governor Gina Raimondo over four years ago. The regulatory process was an after thought, merely a series of boxes to be checked off on the way to building the power plant. It is only the fierce opposition of Burrillville residents and allied environmentalists that have slowed and forced compliance and true engagement with the process, as deficient as that process is.
In the next video Zemba critiqued the way in which RIDEM conducted their biodiversity survey. By beginning the survey in April, RIDEM “conceivably missed a whole month of migratory movements,” said Zemba. Concerning amphibians, Zemba added:
“You get that first warm rain of an otherwise cold period and now there’s a huge rush. They want to mate, so they’ve woken up and now it’s a rush to a big mating party and if you’re late to the party you chances of hooking up are diminished.”
RIDEM’s “time period should be sufficient to make sure that you’ve captured these migratory movements,” said Zemba.
Zemba continued his critique of the biological survey.
“There’s nobody in the regulatory process that apparently has the purview to comment on the inadequacies of these [bio-diversity] surveys,” said Zemba.
Here’s the entirety of Zemba’s cross-examination:
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