Since Conservation Law Foundation (CLF) filed a Superior Court lawsuit in March challenging the legality of the existing contract between the Town of Johnston and Invenergy that allows the town to re-sell Providence water to the power company to cool its $1 billion fracked gas and diesel oil burning power plant planned for Burrillville, both Johnston and Invenergy have filed motions to dismiss.
Today CLF is filing their rebuttal, arguing that their lawsuit not be dismissed. The document CLF filed is technical, and can be read in its entirety here, but of particular interest is the issue of standing. “Lack of standing” is an argument that is often made against environmental organizations in an attempt to get their lawsuits dismissed. CLF maintains that it has standing in two ways, and that either one, alone, would be enough to allow the case to proceed.
First, CLF argues that it has standing through its members. “Rhode Island follows the rule that environmental organizations such as CLF derive their standing to litigate matters such as this by and through their members,” writes CLF Attorneys Jerry Elmer and Max Greene, in their filing. “Kathryn Sherman is a CLF member and an abutter to the site of the proposed Invenergy plant.”
As an abutter, Sherman was allowed to be an intervenor in the hearings, which necessitated that she hire an attorney at her expense. The water plan is one of Sherman’s many issues with having a power plant built so close to her home. Sherman expressed concern in her affidavit to the court about “huge trucks carrying water to Invenergy’s proposed power plant… obstruct[ing] and/or limit[ing] access for emergency vehicles or egress from my property…
“I am a member of CLF,” writes Sherman in her affidavit, “and CLF speaks for me in its legal efforts to oppose the siting and permitting of the proposed Invenergy power plant, including in this Superior Court lawsuit…”
CLF has also included the affidavits of David Brunetti, Jason Olkowski, and Paul Roselli and the entity the Burrillville Land Trust (combined in a single affidavit). All are CLF members and all three natural persons live, and the entity’s property is located, in close geographical proximity to the site of the proposed Invenergy plant. All believe that their quality of life would be directly affected if the Invenergy plant were built, and say so in their respective affidavits. All are specifically concerned about Invenergy’s water plan.
The other way that CLF has standing is because Burrillville has standing, claims CLF in their filing. “It cannot be seriously disputed that the Town of Burrillville has standing to pursue this lawsuit. The Town of Burrillville would be the host community to the proposed Invenergy fossil-fuel power plant; the Town of Burrillville is an intervenor in the EFSB proceedings concerning Invenergy. If Invenergy’s water plan, which is the subject of this litigation, were to be carried to fruition, the Town of Burrillville would see a significant number of trucks on its small, rural, winding roads, including in winter when those roads may be snowy or icy. In lawsuits such as this one, if any single party has standing, then the other parties on the same side of the lawsuit will also have standing.”
CLF contends that the public interest would be served by having the Superior Court rule on the merits of this case. CLF is asking the Court to declare the meaning of the plain language of a 1915 Public Law that provides that Johnston “shall have the right to take and receive water [from Providence Water] for domestic, fire, and other ordinary municipal water supply purposes.” If the court agrees with CLF about the meaning of the statute, the Burrillville power plant project will be dead.
CLF maintains that “Invenergy’s proposed use — to cool a 1,000-megawatt, billion-dollar, fossil-fuel power plant — is not a domestic use. The English word ‘domestic’ derives from the Latin ‘domus,’ meaning ‘house.’ The dictionary definition of ‘domestic’ is “[o]f or pertaining to the family or household.” (Webster’s II, New Riverside Dictionary (1984), at 397). Case law bears out this definition, too. ((See Comite Pro Rescate Dc La Salud v. P. R. Aqueduct & Sewer Auth., 888 F. 2d 180, 184 (1st Cir. 1989) (Breyer, J.)) which held that “holding that the term ‘domestic sewage’ means sewage that, in fact, comes from residences.”
“Washing the dinner dishes is a domestic use,” writes Elmer and Greene, “cooling a billion-dollar fossil-fuel power plant is not.”
Since Invenergy’s proposed use is not for any municipal fire department, “that leaves ‘ordinary municipal water supply purposes.’ In order to satisfy this standard, a water use would have to be both ‘ordinary’ and ‘municipal.’ [Invenergy’s use of the water] is neither.”
“There is absolutely nothing ordinary about this proposed use of water,” contends the CLF, “Johnston proposes to sell 18,000 gallons of Providence water per day (80,000 gallons per day on some days) to Invenergy, a Delaware corporation, with a principal place of business in Illinois, for use in a fossil fuel power plant in Burrillville, Rhode Island. The dictionary definition of “ordinary” is “Commonly encountered; usual.” (Webster’s II, New Riverside Dictionary, at 827). Whatever this arrangement would be, it is very far from being common or usual.”
The CLF continues, “But even if Invenergy’s use of Johnston water were ordinary — which it is not — it is certainly not ‘municipal.’ The dictionary definition of municipal is ‘Of or relating to a city or town or its local government.’ (Webster’s Unabridged Dictionary (2d Ed. 1983), at 1182). Here, it is undisputed that the water at issue will not be used by any city or town — not by Johnston for any purpose, nor by any Johnston resident or Johnston business, nor by any other city, nor by any other town in the world. Instead, the water at issue will be used to cool a privately owned fossil- fuel power plant in Burrillville owned by an out-of-state for-profit corporation.
“Thus, the proposed use for this Providence water is neither ordinary nor municipal.”
“Importantly,” writes Elmer and Greene, “CLF is not the only party that believes that this case presents important questions that implicate the public interest. Both Invenergy and the Town of Johnston agree with CLF on this point, and have told the Court so themselves.
“For example, in the chambers conference on Thursday, March 16,2017, one of Invenergy’s lawyers argued that this case properly belongs on the Superior Court’s Business Calendar because public interest [emphasis added] demands that result: he cited the hundreds of millions of dollars in economic development that are at issue in the case, as well as the job-creation potential to be derived from that spending.
“In addition, the Town of Johnston, in its April 3 Motion to Dismiss was at pains to put the public-interest argument at the very beginning of its Memorandum:
There existed a considerable economic development opportunity for public and private water suppliers within a certain proximity to the Project. It is a municipality’s responsibility to its constituents to recognize and pursue those types of economic development opportunities. The Project represents what will be an in excess of $750M in private infrastructure investment in Rhode Island.
“CLF emphatically agrees with Invenergy and Johnston that this case implicates the public interest, although CLF identifies the public interest differently than Defendants do. For CLF, decades of carbon emissions and climate change are two of the most important public-policy issues implicated by the Invenergy proposal. Moreover, CLF’s stated concern about carbon emissions and climate change reflect the public policy of the State of Rhode Island, as announced by the General Assembly. See the Resilient Rhode Island Act, R.I. Gen. Laws § 42- 6.2-1, (setting Rhode Island carbon-emission reduction targets at 10 percent below 1990 levels by 2020, 45 percent by 2035, and 80 percent by 2050).
“Both Invenergy and the Town of Johnston have told the Court that this case implicates the public interest, and CLF agrees. The public interest would be served by allowing this lawsuit to proceed to resolution on the merits.”