Town of Burrillville and Conservation Law Foundation Prevail: Proposed $1B Power Plant Ruled Unnecessary

After four years of fighting, the Town of Burrillville and Conservation Law Foundation (CLF) prevailed, as the Energy Facilities Siting Board (EFSB) ruled, in an unanimous decision, that Invenergy‘s proposed $1B fracked gas and diesel oil burning power plant, aimed at the pristine forests of northwest Rhode Island, is not needed.

This is a time of great joy in Burrillville, as the Town has been fighting against the power plant for four long years.

Those in the hearing room as the decision was made, most of them from Burrillville, were closely tracking the conversation between the three EFSB board members, Janet Coit, Meredith Brady and Chair Margaret Curran. About 26 minutes into the proceedings, after reciting the history of the four year case and taking care of opening remarks and housekeeping, Chair Curran electrified those in attendance by saying, “I move that the applicant has not proved that the facility is needed to meet the needs of the state and/or region for energy of the type to be produced by the proposed facility.”

Boom.

Those who have been following this case for a while knew that if Curran’s motion was seconded and approved, the case was over. Invenergy would lose.

And that’s what happened.

In order to be licensed, Invenergy had to show that the proposed power plant would be cost effective for consumers, would do no undue environmental harm, and that the plant was needed. If Invenergy failed to meet its burden of proof on any one of these three criteria, the plant could not be licensed.

Under the law, this hearing was the first time any of the three members of the EFSB were able to converse about the case. Their like-minded thinking on the issue was almost eerie.

Board member Coit, who also serves as the Director of the Rhode Island Department of Environmental Management, went into a lengthy, detailed analysis of just exactly why Invenergy failed to meet its burden of proof. Over and over again the other two members of the EFSB agreed with Coit.

After deliberating for just under two hours, Chair Curran surprised everyone with a one hour lunch break. But the board member’s conversation had buoyed spirits among power plant opponents, who were anticipating a favorable outcome. But just how quickly that favorable outcome happened took everyone by surprise. When the EFSB came back into session after lunch, it took about five minutes to decide the case against the power plant.

Those in attendance were so excited, Chair Curran had to twice ask them to hold their applause so she could officially hold the vote.

“Hold on! Hold on!” said Curran as spattering applause broke out. “Given our prior two decisions (that the plant is not needed and that Invenergy had not met its burden of proof) I’m going to move that the application of the license to construct and operate the [proposed Invenergy power plant] be denied.”

Cheers and applause broke out. The motion had yet to be seconded or approved. Curran held up a finger to silence the crowd. “Is there discussion?” Curran asked her fellow board members.

Board member Brady seconded the motion.

“Is there discussion?” Curran asked a second time.

“I have nothing further to add right now,” said board member Coit.

“All in favor?” asked Curran.

“Aye,” said all three members of the EFSB.

“Given that we have denied the application, I move that we adjourn,” said Coit.

The crowd erupted into cheers, tears and applause. “Hearing no objection we adjourn by acclimation,” said Curran.

It was the first time in the 30 year history of the EFSB that a power plant application has been denied in Rhode Island. The high priced lawyers for Invenergy, all eight of them, including Chicago-based attorney Michael Blazer and members of at least three local law firms, left the room rather quickly.

Jerry Elmer

The two lawyers who opposed Invenergy were Michael McElroy for the Town of Burrillville and Jerry Elmer, Senior Attorney at Conservation Law Foundation (CLF). Outnumbered at least 4 to 1, the two litigators argued the case against the power plant brilliantly.

I spoke to Elmer at the conclusion of the case.

“Today’s ruling by the Energy Facility Siting Board was a huge victory for the people of Burrillville, for the state of Rhode Island, and for the world that is facing a climate change emergency,” said Elmer. “The EFSB ruled as CLF and Burrillville have been saying since the beginning: That there’s no need for this power plant. I think one thing that today’s decision shows clearly is that the age of fossil fuels is coming to an end. The ruling today, the decision today, also shows clearly the effectiveness that citizens pressure, grassroots pressure, can have on a regulatory body, particularly when paired up with effective and relentless legal counsel and legal advocacy.

“The comments of the board, particularly Director Coit today, also made clear the tremendous impact that the growth of renewable energy, including but not limited to offshore wind, is having. The unanticipated growth of renewable energy was one of the specific reasons cited by the board in coming to the conclusion that there’s no need for this power plant.

“The development of renewable energy is very, very encouraging and that development made this plant not needed.”

I asked about the possibility of an appeal by Invenergy. Under the law, such an appeal goes straight to the Rhode Island Supreme Court.

“If Invenergy appeals, as they have a legal right to do, CLF will continue the case and will litigate against Invenergy,” said Elmer. “I think it would be wise for Invenergy not to appeal because they’re not gonna win on an appeal and enough is enough.”

“The vote was unanimous. In a circumstance where you have a 2-1 vote the party that loses and appeals, in the appeal they’ll cite what the dissenter said… That doesn’t apply here. You can always appeal but that doesn’t mean you’re gonna win.”

“Nobody has appealed a power plant decision and won in Rhode Island,” I said, “Is that true?”

“Well, yes that is true,” said Elmer. “Of course, no power plant application to the EFSB has ever been turned down before…”

I wanted to know the difference between a power plant proposal being dismissed and being dismissed with prejudice.

“This dismissal is with prejudice,” said Elmer. “It means that this case can never be brought again. Invenergy can never refile the 473 page application that they filed on October 29th, 2015. However, any company in the world, including Invenergy, could file a new application for a new power plant, with a new proposal, at any time. The EFSB found that there is no need for this power plant and the EFSB was right. But the power markets, the energy markets, are dynamic, and NextEra, Exelon, NRG – any energy company in the world, including Invenergy, has a legal right to file a new application for a new power plant in that location or any other location tomorrow.

“Now I think that that is an unlikely thing to happen anytime
soon,” continued Elmer. “and the reason I think it’s unlikely to happen anytime soon is that capacity clearing prices have been declining precipitously there’s no need for a power plant. It wouldn’t be lucrative.”

Here’s the full post-hearing interview with Jerry Elmer: