House legislation reveals problems and challenges to changes to the Energy Facility Siting Act

What is missing in the legislation is science. What should be included is science. There isn’t any reference to science in this legislation.
Photo for House legislation reveals problems and challenges to changes to the Energy Facility Siting Act

Published on March 1, 2021
By Paul Roselli

Nearly a year ago, on March 12, 2020, the Rhode Island House of Representatives‘ Committee on Environment and Natural Resources heard testimony on H7930 calling for systemic changes to the Rhode Island Public Utilities Commission Energy Facility Siting Act (EFSA) and the Energy Facility Siting Board (EFSB). The legislation, at the time, was a result of meetings with industry, political leaders, non-profits, state agencies, town administrators, planners, attorneys and more. The Burrillville Land Trust was a member of that stakeholders group and attended meetings starting in September, 2019 that led to H7930. Once presented before the House Committee on Environment and Natural Resources on March 12, 2020, every environmental organization in the state, in addition to the Rhode Island Chapter of CLF, opposed the legislation, saying that the changes favored the fossil fuel industry, the changes gave a sitting governor appointment power over additional board members to the EFSB, and the legislation did not include the green house gas reduction goals of the Resilient Rhode Island Act of 2014. I, as president of the Burrillville Land Trust, opposed the legislation echoing the findings of the other opposing organizations.

A year later, with a public hearing slated for March 4, 2021, there is a host of proposed changes to the Energy Facility Siting Act (Public Law 42-98) in H5134 that do not make substantive changes to the EFSA to help improve Rhode Island’s economy or improve Rhode Island’s environment or move the EFSB forward in compliance with widely recognized goals of lessening our dependence on fossil fuel energy. Instead H5134 moves the EFSB backwards by giving more power to Rhode Island’s Office of Energy Resources, reducing the reliance on existing state guide plans, appointing the executive director of the Rhode Island Commerce Corporation to the EFSB, having the one and only public member added to the EFSB appointed by the sitting governor, favoring fossil fuel power plants by including a “vulnerability assessment” of alternatives to fossil fuel power plants (no doubt paying homage to the misinformation coming out of some Texas lawmakers on wind and solar being the cause for power outages in that state), and no strict adherence to the greenhouse gas reduction targets in the Resilient Rhode Island Act of 2014.

H5134 is so bad that there are three additional bills also being heard on March 4th that attempt to correct the failings of H5134 and add provisions intentionally left out of H5134. (These are H5175 – which adds a renewable energy offset clause to the existing public law; H5278 – which makes changes to the EFSB more in line with what is necessary; and, H5279 – requires carbon-emission reduction goals be considered in energy plant siting proceedings.)

What is missing in H5134 is science. What should be included is science. There isn’t any reference to science in this legislation. The bill should and must include the EC4 – the Executive Climate Change Coordinating Council and findings from both the Science Technical Advisory Board (STAB) of the EC4 under the Resilient Rhode Island Act and the EC4 – Advisory Board to review and advise for any major generating facility. There are no references. STAB and the Advisory Board are not mentioned. Not including these as well as the Brown University Deeper Decarbonization in the Ocean State report and the Rhode Island Department of Environmental Management (DEM)’s 2016 Rhode Island Greenhouse Gas (GHG) Emissions Inventory is flat out ignoring the brilliant minds that live here, the work that they do and the science to make informed decisions.

In deference to the bill’s sponsors, the bill does propose some widely accepted and much needed changes to the the EFSA and the EFSB. But the positive changes are grossly overshadowed by giving the fossil fuel industry full reign. A case in point in H5134 is page 9 Lines 19 to 21 which states in part “…the agencies may… coordinate to provide alignment of the agencies’s respective reviews.” Its important to remember that agency heads are appointed by the sitting governor. And given that agencies “may” coordinate their respective reviews is akin to relinquishing their independent authority if a sitting governor so chooses. This is bad medicine. Independence of agencies is tantamount to successful governance. Yes, they should talk. But public hearings should take place in each agency based on specific agency recommendations and authority to do so. Agency review must take into account their own charge (health, air, water, emissions, etc.).

The proposed legislation also streamlines the process and quickens the pace for advisory opinions, exchange of discovery and more. These two proposed changes give opposing views little chance to review current research and issue their findings. The time given to oppose is on life support with this legislation.

The legislation goes on to add words that may on the surface seem innocuous but lend further credence that this is a bad bill: Page 11 of 15 adds the word “physical” to environment and “economy” to what must be considered. The bill now reads, “The proposed facility will not cause unacceptable harm to the physical environment or social environment and will enhance the economy of the state.” What’s important here is that the physical environment must include that which is both seen and unseen. A watershed approach that includes the forests above and the aquifer below makes sense in an era where water resources are more important than ever. This legislation fails to recognize the importance of all of the environment.

And when it comes to “enhance(ing) the economy” without any credible measure of an economy, the only thing that is left is opinion. This means that if someone “deems” that the Rhode Island economy is failing, which by anyone’s definition could imply that an economy is never truly robust and must always be failing, a fossil fuel power plant is most absolutely necessary to “enhance” the economy regardless of whether an economy is failing or not.

In addition, the proposed legislation fails to recognize the importance of ratepayers and the voting public. No one questions the need for a public advocate on the EFSB. Many who took part in advocating for a change to the business as usual model of more fossil fuel infrastructure know well that a public advocate was necessary but lacking in the current makeup of the EFSB. But having the Rhode Island Division of Public Utilities and Carriers (DPUC) as the public advocate (this is what the legislation proposes) is not what any of us had hoped for. This is giving the fox the keys to the henhouse.

Within the legislation, there is no mention of holding independent public hearings asking for public input. The mere fact that a public advocate comes from the sitting governor does not pass the smell test. This just plain stinks. The fox knows it stinks but remains mute.

Some who worked on this and other similar legislation to update the EFSA and EFSB may point to H5134 as a compromise or good statesmanship in bringing the divergent parties together during the nearly year long deliberations. But the reality is otherwise, and the changes made point to something else. Compromise that includes a lessening of public health concerns; an adherence to the degradation of the environment of what is seen and unseen; giving in to a special, albeit small, interest group; reductions in economic progress; and promoting the interests of a sitting governor over the interests of the citizens of the state is not compromise and thus fails miserably as a model of statesmanship.

H5134 is a bad bill and should be rejected.

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