Simply put: The power plant is not needed for electricity, the power plant will cause irreparable harm to the environment, the power plant will not save ratepayers money, and Invenergy cannot be trusted.

Today the Post Hearing Memoranda, the final statements from all the parties intervening in Invenergy‘s application to build a $1 billion fracked gas and diesel oil burning power plant amid the irreplaceable forests of northwest Rhode Island, were submitted to the Energy Facilities Siting Board (EFSB). From this point forward the focus of the hearings shifts to the EFSB boardmembers, Margaret Curran, Janet Coit and Meredith Brady, who must now decide whether or not Invenergy gets a license to build the power plant. Though the final decision will almost certainly be appealed to the Rhode Island Supreme Court by whichever side loses, a reversal is unlikely: The Court has never overturned a decision made by the EFSB. On the other hand, the EFSB has never ruled against a power plant proposal.

Under Rhode Island’s Energy Facilities Siting Act (EFSA) the EFSB cannot grant a permit for Invenergy’s proposed power plant unless it finds that the power plant is needed, that the power plant would not cause unacceptable harm, and that the power plant is cost justified. On all three of these counts, maintains Jerry Elmer, Senior Attorney at Conservation Law Foundation (CLF), the Invenergy application fails. Elmer, along with Attorney Michael McElroy, who is representing the Town of Burrillville, is battling against Invenergy before the EFSB.

For an explanation for some of the technical terms, see the glossary at the bottom of this piece.

At the conclusion of CLF’s Post-Hearing Memorandum, Elmer addresses the three criteria mention above, writing:

  • The plant is not needed. As the ISO figures show, electricity demand in New England is declining while supply is increasing. As Invenergy’s expert witness testified, this has caused the crash in FCA clearing prices in every one of the four consecutive auctions since this Docket was opened. And, of course, the lack of need allowed the ISO to cancel Invenergy’s CSO – the first time in the history of the ISO that it has ever believed it appropriate to take that drastic action, an action that Invenergy told FERC “must be reserved for the most egregious cases.”
  • The plant would cause unacceptable environmental harm. It is undisputed that the plant would emit carbon pollution for decades, well beyond 2050. It is undisputed that the plant’s proposed location is on a piece of land identified decades ago by The Nature Conservancy as being uniquely valuable, unfragmented forest between Maine and Washington DC. And it is undisputed that the proposed site is so uniquely valuable that in 2009 DEM tried, unsuccessfully, to buy the land in order to permanently protect it.
  • The plant is not cost justified. Indeed, Invenergy may have the unenviable distinction of being the only “power plant” in history that has actually cost New England ratepayers tens of millions of dollars without having an actual power plant, without having a permit to build a power plant, and without having ever contributed a single electron to the electricity grid.

In the following excerpts, taken from CLF’s Post Hearing Memorandum, Elmer expands on these points:

On the “need” for the plant:

“On September 20, 2018, the ISO made a filing with FERC seeking to terminate the 485 MW CSO that Invenergy had obtained in Forward Capacity Auction-10 (FCA-10). This is the first time in the history of the ISO that the ISO has terminated the entire CSO of a Resource and is highly probative of the fact that the ISO believes that there is no need for either of Invenergy’s two proposed turbines. CLF’s expert, Mr Fagan, testified that the ISO’s decision to terminate Invenergy’s CSO was an important indication that Invenergy’s proposed plant is not needed.

“On September 28, 2018, the ISO disqualified Invenergy’s Turbine Two from participating in FCA-13. Taken together, these two ISO actions meant that FCA-13 was conducted (on February 4, 2019) with no participation from Invenergy, and is very strong evidence of the fact that the ISO believes it does not need Invenergy now or in the foreseeable future to maintain system reliability.

“Invenergy, CLF, and Burrillville all agreed that ISO’s involuntary termination of the CSO that Invenergy had obtained on Turbine One was discretionary on the part of the ISO. That is, if the ISO believed that Invenergy were needed for system reliability now, the ISO had the discretion not to terminate Invenergy’s CSO. Indeed, if the ISO even believed that Invenergy might be needed for system reliability in the future, the ISO had the discretion not to terminate Invenergy’s CSO.

“The ISO’s complete lack of need for either of Invenergy’s two proposed turbines was further confirmed by the fact that, before terminating Invenergy’s CSO, the ISO did a study of system reliability to assess the consequences of terminating Invenergy’s CSO. The ISO found no reliability need for Invenergy.”

On the environmental harm the plant would cause:

“CLF’s witness Mr Comings testified that – in terms of forest connectivity, forest fragmentation and biodiversity – this is a uniquely bad place to locate a new power plant looking at the entire Northeast, from Maine to Washington, DC. In drawing this conclusion, Mr Comings referenced an October 1997 study by TNC that preceded this litigation by decades.

“Significantly, one of the witnesses provided by the Rhode Island Department of Environmental Management (DEM), Jay Osenkowski, stated that he was familiar with Mr Comings’s testimony, had been present for Mr Comings’s cross-examination, and agreed completely with all of Mr Comings’s testimony, including Mr Comings’s expert opinion that this is a uniquely bad location to build a power plant. Indeed, Mr Osenkowski testified that the proposed site of the Invenergy plant is so valuable that DEM had identified the site as early as 1996, and that in 2009 DEM had tried unsuccessfully to purchase the property, in order to protect it in perpetuity. Like the TNC study of this unique parcel, DEM’s attention to this parcel – and its attempt to save the parcel from development – preceded Invenergy’s proposal by decades. Mr Osenkowski may be uniquely credible as a witness, as he appeared on behalf of DEM, not on behalf of any party.”

On ratepayer impacts:

“In Invenergy’s original application, filed October 29, 2015, Invenergy told the EFSB and the people of Rhode Island that Invenergy would privately fund the entire costs of its plant. It fell to CLF to inform the EFSB of the pendency of two lawsuits at FERC to which Invenergy was a party, in which Invenergy sought to transfer $168 million in interconnection costs to ratepayers. CLF’s December 11, 2017 letter to the EFSB on this subject led, the next day, to the EFSB issuing its Show Cause Order 117 that referred to ‘pending actions before the Federal Energy Regulatory Commission. One of those actions seeks to have Invenergy’s financial obligations with respect to operation and maintenance costs of its interconnection shifted to ratepayers. As Invenergy has consistently represented to the Board that the project will be privately funded with no costs to ratepayers, FERC’s decision in this matter could render those representations inaccurate.’

“It was unfortunate that Invenergy sought to transfer its interconnection costs to ratepayers. But it was even more unfortunate that it had to be CLF that informed the EFSB of that fact. The distress of EFSB members is evident from the December 12, 2017 hearing transcript. Chairperson Curran refers to ‘a cost that has heretofore not been contemplated . . . ‘ Director Coit said, ‘It’s been stated over and over by Mr Niland and the attorneys representing Invenergy that this is – I am reading from his prefiled testimony, “This is a privately financed project without seeking any ratepayer funding.”‘ In fact, on December 12, 2017, the EFSB was forced to suspend this Docket until Invenergy had withdrawn its ill-considered lawsuits at FERC.”

Invenergy cannot be trusted

Attorney Elmer has long maintained that even if Invenergy had shown that the plant was needed, would be cost effective and not cause unacceptable harm to the environment, (which clearly, as seen above, it is not) Invenergy would not be the company one should trust to build this proposed power plant.

Simply put, Invenergy cannot be trusted.

Sprinkled throughout the CLF memorandum Attorney Elmer notes at least five instances of Invenergy misstatements, mistruths, and lack of candor. Below are a few examples (emphasis mine):

“Unfortunately, Invenergy’s attorney falsely stated that such involuntary terminations of a CSO have occurred dozens of times…. However, in fact, this is the first time in the history of the ISO that this has occurred… Even Invenergy’s own witness, Mr Hardy, was forced to concede this fact on cross-examination. [Footnote 21 on page 4]

“In its November 9, 2018 FERC filing, Invenergy told FERC that this EFSB docket is ‘the only gating item’ in order for this project to be built. Invenergy stated this twice for emphasis. At the time Invenergy made these statements to FERC, Invenergy knew that these statements were untrue. On November 9, 2018, Invenergy had actual knowledge that it needed a Major Source permit under the Clean Air Act…; a wetlands permit…; a waiver from the Rhode Island Coastal Resources Management Council (CRMC); and a wetlands alteration permit (from DEM). In addition, on November 9, 2018, Invenergy had actual knowledge that it needed an interconnection permit from the EFSB… On the date of Invenergy’s FERC filing none of these permits had been issued. In fact, on the day of Invenergy’s filing, DEM had not yet issued a draft air permit; DEM did not consider Invenergy’s wetlands permit to be complete; and the Final Hearing in the interconnection Docket # 2017-01 had not yet been scheduled. All of these permits were “gating items” necessary for Invenergy to build the plant.” [page 5-6]

“Unfortunately, even when presented with the foregoing facts upon cross-examination, Mr Niland was unwilling to acknowledge that Invenergy’s November 9, 2018 FERC filing was inaccurate as to this docket being ‘the only gating item’ for this power plant. (And, as CLF demonstrates below, Mr Niland was also unable to testify truthfully about the reason for the ISO’s termination of Invenergy.)” [page 6]

“Invenergy’s evasiveness took a remarkable turn when Mr Hardy was asked about the ISO’s termination of Invenergy’s CSO. As noted above, Mr Hardy conceded on cross-examination that this is the first time in history that the ISO has ever involuntarily terminated an entire CSO. However, when asked immediately thereafter whether Invenergy’s lawyer’s statement ‘that that had happened different times in the history of the ISO’ was false, Mr Hardy’s full answer was ‘I don’t know.’ Mr Hardy was asked again, and repeated the same evasive answer a second time.” [pages 20-21]

There is a lengthy section starting on page 30 entitled “Mr Ringler’s Mistakes,” which points out the errors, misinformation and mistakes of Invenergy’s expert witness on environmental harm. I wrote about this issue back in February, because it was revealed that Invenergy’s consulting firm, for which Ringler works, misrepresented themselves to gain access to data from The Nature Conservancy (TNC), then misrepresented the data they acquired in testimony to the EFSB.

I said there were “at least five instances of Invenergy misstatements, mistruths, and lack of candor” because there are sections of CLF’s memorandum that are blacked out, presumably because the redacted information deals with information that the EFSB has ruled to be confidential, as in trade secrets that may hurt Invenergy’s market competitiveness.

At the top of page 19, CLF’s Memorandum reads, “Invenergy’s latest prediction – about FCA-14 to be held in February 2020 – lacks credibility because it…” The rest of the page, including footnotes, is blacked out. The text resumes, “Invenergy ignored this evidence in its written, prefiled testimony. Invenergy’s expert witness ignored this evidence during his cross-examination…. [blacked out] Invenergy’s failure to address this issue reflects a remarkable lack of candor.”

Adding to the idea that Invenergy cannot be trusted, Reporter Tim Faulkner, at eco-RI, points out that the Lackawanna Energy Center in Jessup, Pennsylvania, has violated air-pollution regulations since it began operations last spring and Invenergy hasn’t been forthcoming with the details. Faulkner writes:

“Since May 2018 there have been at least six unreported releases of nitrogen oxides (NOx) in excess of state standards,” writes Faulkner. “NOx is linked to several health and environmental problems, such as respiratory illnesses.

“Invenergy didn’t initially report the air-pollution releases to state officials.”

I hope to get into the Post Hearing Memoranda presented by other intervenors later today.


  • ISOISO New England, which oversees th power grid in New England and holds periodic auctions that determine the price of electricity throughout the region.
  • FCAForward Capacity Auction – Held every year, prospective power providers bid into the auction and promise to deliver power at a pre-determined price three years later on demand from the ISO. FCAs are number FCA-1, FCA-2, etc. FCA-13 is the most recent, FCA-14 will be held this winter.
  • CSOCapacity Supply Obligation – Power providers who successfully compete in a Forward Capacity Auction are granted CSOs. These are contractual agreements to provide power at the price determined in the auction when needed.
  • FERC – The Federal Energy regulatory Commission – The Federal agency that oversees power generation throughout the United States.
  • DEM – The Rhode Island Department of Environmental Management – The State agency that oversees the natural environment in Rhode Island.
  • TNCThe Nature Conservancy – an environmental organization that does on the ground science for threatened ecosystems.

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