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Celebrating the Invenergy victory with CLF’s Jerry Elmer

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It is now possible, not certain but possible, that there will be no future large fossil fuel power plants permitted anywhere in New England,” said CLF Senior Attorney Jerry Elmer.


Jerry Elmer, Senior Attorney for CLF (Conservation Law Foundation), made seven major points during his presentation at the Cranston Central Library Thursday afternoon. Elmer’s presentation was part of an event, Celebrating the Invenergy Victory: Lessons Learned and Moving Forward.

Elmer was the lead attorney representing CLF before the Energy Facilities Siting Board (EFSB) fighting, alongside the Town of Burrillville‘s lawyer Michal McElroy, against Invenergy‘s proposed $1B fracked gas and diesel oil burning power plant aimed at the northwest corner of Rhode Island. Elmer called McElroy “unequivocally the best, most experienced utility lawyer in the state.”

You can watch the full video here, and read a summary of Elmer’s comments below:

On the importance of community involvement

“The local community activists in Burrillville had an absolutely crucially important role to play in this, starting with pushing the Pascoag Utility District to walk away from Invenergy on the non-binding letter of intent on the use of the water from well 3A,” said Elmer. “Your doing that got us the time to get a lawsuit up and running and to get into court and do what needed to be done.”

David and Goliath

“Invenergy told the EFSB, towards the end of the case, that they had spent $45 million on the litigation. That went for options on the land, engineering reports, 23 expert witnesses, seven lawyers in three firms from two states – up against poor Mike McElroy and me,” said Elmer.

Climate Change is still a problem


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“We won the battle, but we didn’t win the war,” said Elmer. “The larger issue here is climate change, and the news on climate change is really, really bad. CO2 emissions, in the United States and worldwide are continuing to grow… use of natural gas fossil fuel is growing in the United States and growing worldwide, use of fossil fuel oil is growing worldwide…

“We now know that the Greenland glacier is melting much faster than was previous understood, and when that’s gone, sea levels will rise about 22 feet,” continued Elmer. “The West Antarctic Ice Shelf is melting faster than previously known, when that’s gone, sea levels will go up 15 feet…

“We live in a country where the President has withdrawn us from the Paris Climate Accord, and in Rhode Island we have a governor who not only supported this plant for Burrillville, from beginning to end, even when it was clear the plan was going down, we have a governor in Rhode Island who promised in the last election – in writing – to support a statewide climate bill with mandatory, legally enforceable carbon emission reductions, and when that bill was in the General Assembly this past session, she reneged on that promise.

“So yes, we won a battle, but the war is still going on.”

There was cake!

There are (at least) two ways to fight climate change

“There is fighting against a fracked gas and diesel oil power plant. We won. That’s really, really good,” said Elmer.

“Another way of going about it is to pass broader legislation, like last session’s Global Warming Solutions Act that would provide for mandatory, legally enforceable carbon emissions reductions that would make it impossible to permit or site any power plants like this in the state – this particular one, or the next one.

“My purpose here is not to argue which of these two approaches is better because we probably need both, but I do want to alert you that in the coming session of the General Assembly, there is going to be a new piece of climate legislation introduced. It may not go under the name Global Warming Solutions Act,” continued Elmer. “It’s going to be a bill that, if enacted, would have mandatory, statewide, economy wide, legally enforceable requirements for reducing carbon emissions.

“We would like your help in getting that bill passed this year.

“Last year, when we had a Global Warming Solutions Act, it was the American Petroleum Institute lobbyist who was up there testifying against it.”

Invenergy case a turning point for all of New England

“It is now possible, not certain but possible, that there will be no future large fossil fuel power plants permitted anywhere in New England,” said Elmer.

Elmer elaborated that one of their expert witnesses in the Invenergy hearings was Christopher Stix, testifying in 2016 on ratepayer impacts. Stix testified then that the Invenergy plant, even if permitted, “would not be economic, would not be lucrative for Invenergy to run, to operate [or] to build,” noted Elmer. “That the way energy markets in New England are going now is not economically viable…”

The PUC at the time rejected Stix’s arguments, but they were wrong to do so (and the EFSB threw out the PUC’s finding.)

“One of the ways you can tell that Chris was right and the PUC was wrong is when you look at the proposed gas fired power plant for Killingly Connecticut. Unlike Invenergy, the Killingly proposed plant now has a permit from the Connecticut Siting Board… The owners of the proposed Killingly Plant have been trying to get funding – loans from banks – to build that plant, and so far they’ve been unable to do that.

“The reason that they’ve been unable to do that, so far, is that bankers are smart, and careful with their money. They’re not going to give a loan to a company that’s going to go into bankruptcy and be unable to repay the loan.

So in Killingly you have playing out – at least so far – a sort of real world example of what Chris Stix’s testimony to the PUC was saying. It is no longer economically viable to be talking about building large fossil fuel power plants in New England.”

Elmer caveated by emphasizing that he is not promising that Killingly won’t be built.

There are problems with the Energy Facilities Siting Act

Rhode Island’s 1986 Energy facilities Siting Act has “multiple problems” said Elmers.

“Remember that the statute was written as a way of getting plants like this permitted more easily,” said Elmer. “What the General Assembly perceived, accurately back in the eighties, was that local opposition to proposed power plants was making it very hard to get them sited anywhere, so let’s take away from local communities the authority to grant or deny permits and put that with a central board.”

The problems, noted Elmer, include:

  • Two out of the three members of the board sit at the pleasure of the Governor, and the political pressure that could put on those members, “when you have a Governor who is strongly supportive of a power plant.”
  • There is no local representation from the affected community on the board.
  • There is no guarantee that carbon emission reduction goals are being considered.

There is a committee presently taking up the issue of possible changes to the Energy Facilities Siting Act.

Elmer notes that there may be bills coming to the General Assembly the change the Energy Facilities Siting Act, and he asked those attending to oppose bills that “would further debase” the act and make it easier to site power plants in Rhode Island.

The many mistakes Invenergy made during this case

Elmer divided up the mistakes Invenergy made into several categories.

The first category o mistakes fall under the umbrella of calculated risks.

“Invenergy made a careful, conscious, deliberate, on purpose decision to enter into a non-binding letter of intent with the Pascoag Utility District for water, because Invenergy wanted it to be non-binding so that they could walk away from the deal if ever they wanted to… It never occurred to them in a million years that community pressure would be brought to bear on the Pascoag Utility District and that they would be denied water… Their mistake… was a carefully thought out decision.”

The next category of mistakes were the result of ignorance.

“For example, Invenergy honestly, genuinely, didn’t know that here in New England the interconnection costs, the cost of building the transmission line from the power plant to the nearest National Grid substation eight and a half miles away falls on the developer,” said Elmer. In many utility districts around t he country, these costs are borne by the grid operator and the costs are put on consumers.

“So they were genuinely shocked when it turned out they were going to have a $168 million in interconnection costs that they hadn’t figured on,” said Elmer. “That was just ignorance on their part.”

The next category of mistakes are not from ignorance, but fro stupidity.

“For example, Invenergy filed two lawsuits in Washington DC with the Federal Energy Regulatory Commission (FERC), to get FERC to decide to transfer that $168 million in interconnection costs from Invenergy to ratepayers, and Invenergy didn’t tell their lawyers at Adler Pollock and Sheehan, that they had filed that lawsuit.”

When Elmer brought this lawsuit up during a hearing of the EFSB, “the jaws of the AP&S lawyers dropped to the ground because they hadn’t been told by their client that there was a pending lawsuit at the Federal Energy Regulatory Commission, that would transfer $168 million – That’s just stupid. You don’t tell your own lawyers what you’re doing?”

The last class of mistakes fall under hubris and arrogance.

It turns out that Invenergy secured information from Scott Cummings, who works for The Nature Conservancy. Cummings was an expert witness for CLF during the EFSB hearings. To secure the information, Invenergy misrepresented themselves, essentially lied about the reason they needed the information. Then Invenergy compounded this error by misrepresenting the information before the EFSB. You can read about this in detail, here.

“That allowed us to put Scott Cummings on the stand to explain that this was his data, that he had developed, that he had derived, and all the ways that Invenergy had misused the data,” said Elmer.

“That’s just hubris. That’s just arrogance on their part, to lie and proceed in that way,” said Elmer. “And none of those mistakes helped them.”


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