In an unusually blunt memorandum, Conservation Law Foundation (CLF) accuses Invenergy and the Town of Johnston of false statements, irrelevancies and contradictions in their motions to dismiss CLF and the Town of Burrillville’s Superior Court lawsuit challenging the legality of the existing contract between the Johnston and Invenergy that allows the town to re-sell Providence Water to the power company to cool its proposed $1 billion fracked gas and diesel oil burning power plant, planned for Burrillville.
The language in CLF’s most recent memorandum against dismissal seems to challenge not only Invenergy and Johnston’s legal position, but the competency of their lawyers.
At issue is the wording of the 1915 law that governs Providence Water. Invenergy and Johnston maintain that Johnston has the right to resell Providence Water at a profit to Invenergy. CLF and Burrillville argue that the plain reading of the law establishes that the water must be used for “domestic” purposes, like washing dishes or flushing a toilet. “Having Johnston re-sell the water to a Chicago corporation (Invenergy) for use in a power plant in Burrillville is clearly not an ordinary Johnston municipal purpose,” said CLF senior attorney Jerry Elmer.
Invenergy and Johnston contend that the Energy Facility Siting Board (EFSB), not Superior Court, has the jurisdiction to decide on the the 1915 Providence Water legislation and wants the case dismissed. CLF’s memorandum, written by CLF attorneys Jerry Elmer and Max Greene, refutes this contention and plainly states that some of the assertions made by by Invenergy and Johnston are false.
On page two of their most recent memorandum, filed Friday, CLF takes Invenergy’s lawyers to task for asserting that CLF has conceded that the EFSB has jurisdiction over this case, not Superior Court. “Invenergy also says, ‘The Plaintiffs have conceded jurisdiction’ lies with the EFSB… This is false. CLF said the opposite…” (emphasis mine)
On page 4, CLF uses more blunt language, arguing that Invenergy is not only making false statements, they are contradicting their own arguments:
“Invenergy asserts that ‘the fact that CLF has an organizational mission and historic role opposing the construction and operation of fossil fuel power plants is irrelevant to the standing analysis.’ Invenergy’s argument is deeply ironic. In its Motion to Dismiss, Invenergy asserted that CLF does not have standing because this lawsuit is ‘unrelated to its [CLF’s] organizational purpose.’ Now, when CLF has shown that (of course) this lawsuit is directly related to its organizational purpose, Invenergy switches tacks and belatedly asserts that that fact is irrelevant. Invenergy is contradicting itself.” (emphasis mine)
Page 6 of CLF’s memorandum refutes a number of claims by Invenergy and Johnston, as the lawyers for both seem uninterested in disentangling arguments made by CLF in their briefs from arguments made by Burrillville in theirs.
“Both Invenergy and Johnston conflate arguments advanced at the EFSB by the Town of Burrillville and by CLF. CLF never sought to have the EFSB docket closed because of any matter pertaining in any way — either directly or indirectly to the Invenergy-Johnston water contract. CLF never made that argument at the EFSB in a written submission. CLF never made that argument in an oral statement. Invenergy and Johnston do not and cannot cite any fact to the contrary. CLF’s Motion to Dismiss was based solely on the lack of satisfactory Advisory Opinions. CLF made no argument pertaining to water.
“Invenergy claims that Plaintiffs ‘have pursued these arguments in previous filings with the EFSB.’ That statement is false as to CLF.” (emphasis mine)
In footnotes, CLF deals with Invenergy and Johnston’s reliance on a “precedent” supposedly established by PUC Docket 3121, “Woonsocket Water Division Request to De-Tariff Water Truck Sales.” Both Invenergy and Johnston maintain that this case establishes the Johnston’s legal right to resell Providence Water for industrial purposes. CLF shows why case is irrelevant.
In footnote 2 CLF writes, “CLF need not address Johnston’s assertion, as Woonsocket does not take water from Providence and therefore is not covered by the 1915 Act. Whatever Woonsocket may or may not do simply has no bearing on this case.”
In footnote 3 CLF writes, “In that case, the Woonsocket Water Division (WWD) requested permission from the PUC for a minor adjustment to delivery dates and hours in light of terrorism and security concerns in the aftermath of the September 11 attacks in New York. In a three-paragraph Order, the PUC said that it had addressed WWD’s terrorism concerns.”
CLF asserts, contra Johnston, that the EFSB does not have the jurisdiction to decide matters of law. It has the jurisdiction to decide upon what CLF calls “adequacy.”
“The EFSB reviews… for adequacy, not for legality. These are two entirely separate inquiries; for one thing, the former inquiry (adequacy) is a question of fact; in contrast, CLF’s lawsuit about legality poses a pure question of law.”
If the the court were to rule that the EFSB has the power to decide the law as it pertain to Providence Water, then absurdity results, says CLF:
“The proposed Invenergy facility will require trucked hydrogen, perhaps from a facility in Connecticut. Does that fact confer jurisdiction over the Connecticut hydrogen facility in the Rhode Island EFSB? Invenergy will require ammonia, to be trucked from some New England state, perhaps New Hampshire. Does that fact confer on the Rhode Island EFSB jurisdiction over that ‘required support facility’ in New Hampshire? Courts do not construe statutes to achieve absurd results.”
CLF, Burrillville, Invenergy and Johnston will be in Superior Court to hash these issues out on May 31.