Conservation Law Foundation

October 29, 2016

Burrillville residents refuse to drink tax treaty Kool-Aid

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2016-10-27 Burrillville Town Council 07 — Michael McElroy

Wednesday night’s Burrillville Town Council meeting hearkened back to the early days of public opposition against Invenergy’s $700 million fracked gas and diesel oil burning power plant planned for the town. Back then, we saw a public that was distrustful of the town council, and a town council that was not receptive to the idea of opposing the power plant, early on claiming to be powerless against the combined might of Invenergy, Governor Gina Raimondo’s office and regulators.

The town council then took the position, contrary to the Open Meetings Act, that people in the town were only allowed to talk about issues and subjects that were specifically listed on the town council’s agenda, cutting off discussion about the Algonquin pipeline if the power plant was on the agenda, or vice versa. In December of last year, calls from the town council to trust them elicited groans of dismay from the audience.

Then, in April of this year, it was learned that the town council had been in secret negotiations for a tax treaty with Invenergy for months. The town council was still forcing residents to only speak about “agenda items” and working hard to curtail public discussion, contrary to the Open Meetings Act. The growing resistance in Burrillville to the power plant felt disempowered. Not only were they fighting a multi-billion dollar power plant company funded by a Russian oligarch, they were fighting both the state and local governments. The fight seemed impossible and trust between the town council and residents couldn’t be worse. Or so they thought.

At an April 14 town council meeting Council President John Pacheco said that the town council learned about Invenergy’s plans when everyone else did, during a press conference held by Governor Raimondo announcing the plant, saying, “As a town council, we did not know this plant was actually going to happen until the Governor announced it.”

This turned out to be inaccurate. Videos of town council meetings from February and March of 2015, on the town council’s own website, showed the town council and state legislators paving the way for the controversial Invenergy power plant months before the governor officially announced the project. Over time some of the details about how Invenergy approached the town came to light, but the complete story, and who opened what doors to the power plant, has yet to be revealed.

The town council eventually came to a public position regarding the power plant: The town council would put on a public display of strict neutrality, taking no position for or against the power plant, until after all the advisory opinions from various town boards had been completed. This was so as to appear to not influence the outcomes of the various advisory opinions and give the Energy Facilities Siting Board (EFSB) a reason to suspect that the opinions might be slanted in some way.

State legislators Cale Keable and Paul Fogarty went a different route. They entered legislation at the state level that if passed, would give voters in Burrillville the ability to approve or reject any tax treaty negotiated between the town council and Invenergy.

The bill passed the House and was due for consideration and a vote in the Senate when the town council passed a resolution in opposition to the Keable Bill at the 11th hour, giving the Senate Judiciary Committee enough of a reason to vote down the bill. The relationship between the town council and residents was now overtly acrimonious. There were tears from Town Councilor Kimberly Brissette Brown and anger and accusations from Town Councilor Donald Fox. Residents spoke of feeling “humiliated” at the State House as the press release announcing the resolution was sprung on them by Senators Frank Lombardi and Steven Archambeault, who treated the residents with risible condescension.

Since that low point, the town council and residents worked to rebuild trust. Residents by this time were long past being held to arbitrary and incorrect readings of the Open Meetings Act. They spoke their minds, expressed their concerns and the town council, to their credit, finally seemed to be listening. They seemed to come together as a town when Governor Gina Raimondo visited to hear resident concerns about the power plant.

After the lengthy process of creating the advisory opinions concluded, the town council passed an extremely robust resolution opposing the power plant and asked other city and town councils in and around Rhode Island to join them in opposition. Many already have and many more are considering joining Burrillville in opposition to the plant. But the Burrillville Town Council’s opposition came with a caveat: They still planned to sign a tax treaty with Invenergy, a tax treaty that the town residents want to hold off on signing.

At issue is the timing. The town council maintains that they have negotiated a solid tax treaty that will protect the town in the event the power plant is built, and guarantee a steady stream of income to the town. The residents want to wait until after the EFSB decides on Invenergy’s application before signing any treaty. Right now, the power plant’s application is suspended, pending Invenergy’s search for a new source of water. Signing the tax treaty, say residents, gives Invenergy extra leverage in negotiating a deal with another municipality, like, let’s say, Woonsocket, to purchase water. The town’s opposition to the power plant must be unified and consistent. Opposing the power plant with a resolution sends one message, signing a tax treaty with Invenergy sends another.

At Wednesday night’s hearing, Attorney Michael McElroy, who negotiated the tax treaty, said that the opposing the power plant and signing a tax treaty were not inconsistent actions and would not be seen that way. “I want to make it… clear that I see no inconsistency between entering into these agreements and dead set opposition to the plant,” said McElroy.

But McElroy is a lawyer. He is not a business man trying to buy water to cool a power plant. What businessman wouldn’t mention the tax treaty as proof that the town council is actually okay with having the power plant sited in their town? The resolution in opposition will be described behind closed doors as merely political theater, something to satisfy the rubes while the real business of government is imposed by the movers and shakers in secret meetings paid for with political contributions.

McElroy did his best to sell the tax treaty to the residents. He spent 45 minutes outlining the deal, expressing the need for a treaty. One reason McElroy gave, that didn’t sit well with residents, was that, “I want to get paid.” The money generated by this tax treaty will give the Town of Burrillville the money it needs to fight the siting of the power plant all the way to the Supreme Court, if need be. The lawyers and experts needed to fight such a case cost money, said McElroy, who included himself in those expenses.

McElroy suggested that if the town council did not pass the tax treaty, Invenergy might pull it off the table. He assured the audience that contrary to what Conservation Law Foundation senior attorney Jerry Elmer says, the plant will be built without a tax treaty in place.

Residents weren’t buying it. Towards the end of what turned out to be a five hours plus meeting, it was obvious that the town’s people were not willing to drink the tax treaty Kool-Aid. Forty people spoke against passing the tax treaty. Two spoke in favor of trusting the town council and McElroy’s advice.

Ultimately the town council recessed without doing anything on the tax treaty. There is a plan to take up the issue again next week.

2016-10-27 Burrillville Town Council 03 — Midnight, during a short break

October 27, 2016

EPA forced to confront water pollution in Rhode Island

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ri_mashapaugpond_litter3_clf — Mashapaug Pond

Conservation Law Foundation (CLF) argued Tuesday before the United States District Court for the District of Rhode Island concerning the failure of the U.S. Environmental Protection Agency (EPA) to adequately protect Rhode Island waterbodies from ongoing and devastating stormwater pollution. Despite determinations from EPA and Rhode Island’s Department of Environmental Management (DEM) that Mashapaug Pond, Bailey’s Brook, North Easton Pond, and other nearby waters are seriously harmed by runoff from surrounding commercial and industrial properties, EPA failed to require dischargers to obtain the necessary permits under the federal Clean Water Act.

ri_mashapaugpond_drain_clf — Mashapaug Pond

“One of the great sources of pride for Rhode Island – the Ocean State – ought to be our ponds, rivers and beautiful coastline, but decades of toxic runoff has imperiled our waters, closed our beaches and endangered important wildlife habitats,” said CLF attorney Max Greene. “There’s no question that nasty pollutants like nitrogen and phosphorus, the precursors to toxic algae blooms, are constantly flowing from industrial campuses and commercial shopping centers into nearby waterways, yet EPA has sat on its hands rather than take the legally-required steps to address this rampant contamination. Today, EPA was forced to answer for that neglect in federal court, and we’re optimistic that Rhode Island waters will soon be on the path to recovery.”

Today’s hearing comes on the heels of an announcement from Rhode Island DEM earlier this month that lower Narragansett Bay, lower Sakonnet River, and a portion of Rhode Island Sound are being closed due to toxic shellfish findings associated with harmful algae blooms.

For more information on CLF’s fight to protect Rhode Island from stormwater runoff, please see CLF’s white paper on the issue, “Closing the Clean Water Gap: Protecting our Waterways by Making All Polluters Pay.”

A copy of CLF’s filing can be read here, and photos of the endangered Mashapaug Pond can be seen here.

October 26, 2016

Pipeline tariff killed in Connecticut, Rhode Island an outlier

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The Connecticut Department of Energy and Environmental Protection (DEEP) has decided against the proposal for gas capacity tariffs on the Spectra Access Northeast pipeline. This announcement comes on the heels of decisions by the Massachusetts Supreme Judicial Court and New Hampshire Public Utilities Commission rejecting similar proposals. The Rhode Island Public Utilities Commission (RIPUC) declined to kill the local version of the plan in September, but the plan seems doomed anyway.

“With yet another state abandoning proposals for more natural gas pipeline capacity, these efforts to expand fossil fuel infrastructure in New England have hit a virtually unsurpassable roadblock,” said Conservation Law Foundation (CLF) president Bradley Campbell in a statement. “Without Massachusetts, New Hampshire or Connecticut in the mix, Spectra has lost a whopping 84 percent of the customer base needed to finance this ill-conceived proposal. It’s time to kill this project altogether and look forward to opportunities for the clean, renewable alternatives that our families demand, our markets expect and our laws require.”

It is unknown when the RIPUC will act to reject the proposal here.

October 24, 2016October 25, 2016

Burrillville Town Council about to have its Gaspee moment

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On Wednesday the Burrillville Town Council will be discussing the proposed tax treaty with Invenergy, the company that wants to build a $700 million fracked gas and diesel oil burning power plant in the town. The timing of this discussion could not be worse. Invenergy just successfully petitioned the Energy Facilities Siting Board (EFSB), the governmental body tasked with with approving or rejecting the plant, for a 90 day extension on their application. Because Invenergy can’t find the water it needs to cool the plant, for the first time the company is on the ropes. Approving a tax treaty at this time will give the company a much needed win, and might turn the tide in their favor.

Invenergy is searching for the water they need. An Access to Public Records Act (APRA) request from RI Future has revealed that Woonsocket Mayor Lisa Badelli-Hunt’s office has had two meetings with Invenergy officials. On September 7 there was a 30 minute meeting and on September 20 there was a 60 minute meeting. Other meetings may have occurred since then. We know from statements made at the October 3 Woonsocket Town Council meeting that these discussions were not about siting the plant in Woonsocket. These discussions, assumed to be ongoing, are about water. Whatever bargaining position Invenergy has in their discussions with Woonsocket, or any other entity contemplating providing the water Invenergy needs, will be enhanced by the existence of an approved tax treaty.

Passing a tax treaty will send mixed signals to the rest of the state. On September 22 the Burrillville Town Council issued a strong statement in opposition to the proposed power plant. They sent out missives to cities and towns through Rhode Island, Connecticut and Massachusetts asking for other town and city councils to pass resolutions in solidarity with Burrillville. So far at least four municipalities have done so, Lincoln, Glocester, North Smithfield and Middletown. How foolish will these councils feel if Burrillville proceeds to negotiate with the company they’ve asked for support in opposing? How eager will other municipalities be to pass their own resolutions going forward?

Jerry Elmer, senior attorney for the Conservation Law Foundation (CLF) believes that the Town of Burrillville “is under zero obligation to enter into a tax treaty,” adding, “By ‘zero obligation,’ I mean: zero legal obligation, zero ethical obligation, zero political obligation. The Town has tax laws on the books, and those existing tax laws will determine Invenergy’s tax obligation if there is no tax treaty.

“Invenergy can (and likely will) make all kinds of threats about what will or will not happen in the absence of a tax treaty, but the threats are empty,” continues Elmer, “The bottom line is that: (a) The Town can simply choose not to enter into a tax treaty. (b) If the Town chooses not to enter into a tax treaty there is nothing that Invenergy can do. (c) If the Town chooses not to enter into a tax treaty, it is virtually certain that Invenergy will go away.

“But can’t Invenergy sue the Town of Burrillville to try to force the Town to enter a tax treaty?” asks Elmer, before answering, “Technically, the answer is “yes,” Invenergy can sue the town – and, yes, the town would have to spend some money to defend such a lawsuit. But Invenergy could not win such a lawsuit. Remember what law school professors like to say: ‘You can always sue.’ I can sue you for wearing a blue suit (or for your taste in movies). But just because one can bring such a stupid, frivolous lawsuit does not mean that one can win such a stupid lawsuit.

“So, too, with Invenergy and a tax treaty. The Town of Burrillville can decline to enter into a tax treaty with Invenergy, and there is nothing Invenergy can do to force the issue.

“The message to each and every member of the Town Council is simple, so simple it can be put into a single sentence: ‘Vote down any tax treaty.’ Or: ‘Don’t even vote on a tax treaty.’ Or: ‘Don’t vote on a tax treaty, and don’t approve a tax treaty.’ None of those sentences is complicated; none of those involves weird, technical legal mumbo-jumbo. Everyone can understand the point.”

Attorney Alan Shoer, of Adler Pollock & Sheehan, has been representing Invenergy during their application process in front of the EFSB. A look at Shoer’s bio page on his law firm’s website runs down his skills and accomplishments. Shoer is presented as an expert in “all aspects of energy, environmental, and public utility law.” He has “experience in wind, solar, hydro and other renewable energy matters,” and “has represented developers, investors, contractors, utilities, and municipalities in several successful and innovative sustainable energy projects.”

Note what Shoer does not include in his online resumé: Anything at all to do with his strong advocacy for companies that want to expand Rhode Island’s dependence on fracked gas.

Like Governor Gina Raimondo, who never misses an opportunity to publicly champion wind and solar power but downplays her support of fracked gas, and like Senator Sheldon Whitehouse who humbly accepts the laurels heaped upon him for his environmental activism in the Senate but can’t find the time to publicly oppose fracked gas infrastructure in his own state, Alan Shoer seems to want his paid advocacy for fossil fuels companies like Invenergy to go unnoticed.

And this is for a good reason: Twenty years from now, no one will want their name to be attached to the moldering LNG monstrosities, brown fields and contaminated properties left in the wake of the coming fossil fuel collapse. Who wants to tell their children and their grandchildren that they helped destroy the environment when they knew the world was under threat and they knew that they were championing a dying and deadly industry? Carefully shaping their public image today is a way, hopes Raimondo, Whitehouse and Shoer, of shaping the way history will judge them.

But we won’t let the world forget their part in this, will we?

This is why Invenergy would be foolish in suing Burrillville. Not only can they not win, as Jerry Elmer points out above, but in doing so they will be exposing themselves as the villains they are. Burrillville may have to spend money defending themselves against such a lawsuit, but I will bet that most or all of the money Burrillville needs to defend themselves could come from something like an online GoFundMe effort. Fracked gas is enormously unpopular in New England, and becoming more unpopular by the day. Only those who continue to believe the lies of the fossil fuel companies, (and they’ve been lying for decades about climate change, as it turns out) that is, the most gullible or ideologically pathological, believe that fossil fuels are the future.

About 244 years ago, a group of Rhode Islanders in Warwick stood up against British tyranny and torched the Gaspee, starting a series of events that led to the American Revolution. Today, in Burrillville, a group of Rhode Islanders is standing up to the fossil fuel oligarchy and when they win, it will mark a turning point in the climate change battle, and the effects could be as significant as those at Gaspee Point in 1772. Rhode will become, in the words of Timmons Roberts, writing for the Brookings Institute, “a leader of a new energy age for the U.S.,” instead of “a middling actor locked into fossil fuel infrastructure for decades.”

The Burrillville Town Council has an opportunity Wednesday night to save the town, the state, and the world.

Be there.

October 13, 2016October 14, 2016

EFSB sentences Burrillville to 90 days of existential uncertainty

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20161013_114807 — Pre-hearing lawyer chat

Amid audience shouts of “Shame on you!” and “Merry Christmas, Invenergy!” the Energy Facilities Siting Board (EFSB) voted unanimously to grant Invenergy a 90 day suspension on their application to build a $700 million fracked gas and diesel oil burning power plant in Burrillville, effectively quadrupling Invenergy’s previous 30 day extension.

Once Pascoag voted to terminate their letter of intent with Invenergy to provide water to cool Invenergy’s proposed power plant, and Harrisville also declined to provide water, the company asked for 30 days to find an alternative source. They were granted a 30 day extension 30 days ago and despite negotiating with Woonsocket for the water needed to oil the power plant, nothing concrete was presented at today’s hearing.

Instead we heard Invenergy lawyer Alan Shoer claim that Pascog’s termination of their letter of intent came “very late in the process, after almost a year of working with Invenergy.” This made it impossible for Invenergy to come up with an alternative plan, complained Shoer. Attorney Jerry Elmer with the Conservation Law Foundation (CLF) later countered that “Invenergy made a careful, conscious, deliberate decision to file an application with the EFSB that had very tight, strict, statutory deadlines for things happening, before they had a secure water source… That was Invenergy’s sole election.”

In other words, continued Elmer, Invenergy knew that their non-binding letter of intent “may not result in a water source.”

The 90 day suspension comes with the minor caveat that Invenergy provide a status update in 60 days. The update must show concrete progress in securing a water source, though it is unclear what penalty Invenergy may face if they do not deliver an update that is satisfactory to the board. Criteria for the update seemed sketchy.

In 90 days, Invenergy must be able to present a water source to the board, along with a plan to transport the water to the location of the power plant. Burrillville recently provided a list of criteria that board member Janet Coit suggested would need to be satisfied for the suspension to be lifted. The criteria includes the source of the water, the means of transmission of the water, and the disposal of waste water, among other concerns.

In the event that Invenergy is unable to come up with a water supply, Coit suggested that the EFSB might be open to further suspensions at that time, effectively suggesting unlimited time for Invenergy to get their application in order, unless the board decides to dismiss the application per the motions from the Conservation Law Foundation and the Town of Burrillville.

Lawyer Michael McElroy gave a stellar speech to the board in support of dismissing Invenergy’s application, even going so far as to quote Marvel Comics’ Stan Lee. McElroy also directly confronted Chair Margaret Curran and board members Parag Agrawal and Janet Coit about concerns that the EFSB’s process “may be dictated by” Governor Gina Raimondo.

“The Town of Burrillville does not want this plant,” said McElroy, “I think that’s been made clear to this board. This plant would be a polluting monster that violates the town’s comprehensive plan and zoning ordinances and would negatively impact impact the quality of life for all Burrillville residents.

The EFSB, continued McElroy, “has been given extraordinary legal powers to grant permits that would otherwise be granted by my client, the Town of Burrillville. You have in essence become, among other things, the town’s planning board, its zoning board and its building inspector. But with such great power comes great responsibility. Your most important power and responsibility is to fully, fairly and impartially evaluate all of the issues that come before you after hearing from all of the parties on those issues.”

“The residents of the town and my clients have become concerned that throughout this process that the board’s votes on this process may be dictated by the governor, who has repeatedly and publicly expressed her support for this project despite the town’s overwhelming opposition. This board’s ill-advised and illegal previous attempts to silence the town and prevent it from being heard today only reinforces that concern.

McElroy urged the board to dismiss the docket, not suspend it. “Suspending the docket instead of dismissing it would give Invenergy what amounts to a gift of an indefinite suspension,” said McElroy. “The town has been fighting this battle now for almost a year at great monetary and emotional expense.”

McElroy’s fiery comments stand in sharp contrast to those of Jerry Elmer, who added that though the lack of water was a major issue that precipitated the motion to suspend, there was also the issue of a lack of information from Invenergy that caused six of the twelve advisory opinions to the board to be submitted incomplete.

After the board rendered its decision those watching the proceedings left the room singing “We shall overcome.”

Those from Burrillville I talked to were angry and disappointed by the ruling. They feel the process is corrupt and stacked against them. They feel that they are being forced to attend yet more town and city council meetings throughout the state in an effort to garner support and prevent the sale of water to Invenergy. Their holidays will now be filled with research, activism, environmental reports and endless meetings in towns and cities throughout the state and beyond to garner support for their cause and to prevent Invenergy from securing a source of water.

Yet though the process seems corrupt and Invenergy seems intent on grinding away their resolve, the people I talked to were adamant that they would not give up or stop fighting.

October 12, 2016

New Hampshire joins Mass. in rejecting pipeline tariff

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National Grid’s proposed pipeline tariff, now under an indefinite stay per the Public Utilities Commission here in Rhode Island, was rejected in New Hampshire last week. The controversial and complicated plan, which would make electricity ratepayers in New England financially responsible for the creation and profitability of a new fracked gas pipeline, involves multiple companies working together across multiple states. Here’s a description from the New Hampshire Public Utilities Commission:

“Eversource is a public utility headquartered in Manchester, operating under the laws of the State of New Hampshire as an electric distribution company (EDC). Algonquin is an owner-operator of an interstate gas pipeline located in New England. Algonquin is owned by a parent company, Spectra Energy Corp (Spectra), a publicly-traded corporation headquartered in Houston, Texas. Algonquin has partnered with Eversource’s corporate parent, Eversource Energy, headquartered in Boston, Massachusetts, and Hartford, Connecticut, and with National Grid, the parent company of EDC subsidiaries in Rhode Island and Massachusetts, to develop the Access Northeast pipeline. In general terms, Eversource Energy’s EDC subsidiaries in Connecticut, Massachusetts, and New Hampshire and National Grid’s EDC subsidiaries in Rhode Island and Massachusetts, are each individually seeking regulatory approval of gas capacity on the Access Northeast pipeline.”

When the Massachusetts Supreme Judicial Court ruled against National Grid’s pipeline tariff in Massachusetts, the Conservation Law Foundation brought a motion to dismiss the proposal here in Rhode Island. Instead, the PUC issued an indefinite stay in the proceedings, with the caveat that National Grid file a progress report on January 13, 2017.

Last week the New Hampshire PUC ruled against their state’s involvement in the plan, writing,

“The proposal before us would have Eversource purchase long-term gas pipeline capacity to be used by gas-fired electric generators, and include the net costs of its purchases and sales in its electric distribution rates. That proposal, however, goes against the overriding principle of restructuring, which is to harness the power of competitive markets to reduce costs to consumers by separating unregulated generation from fully regulated distribution. It would allow Eversource to reenter the generation market for an extended period, placing the risk of that decision on its customers. We cannot approve such an arrangement under existing laws. Accordingly, we dismiss Eversource’s petition.

“We acknowledge that the increased dependence on natural gas-fueled generation plants within the region and the constraints on gas capacity during peak periods of demand have resulted in electric price volatility. Eversource’s proposal is an interesting one, with the potential to reduce that volatility; but it is an approach that, in practice, would violate New Hampshire law following the restructuring of the electric industry. If the General Court believes EDCs should be allowed to make long-term commitments to purchase gas capacity and include the costs in distribution rates, the statutes can be amended to permit such activities.”

The Maine Public Utilities commission has voted in favor of the pipeline tariff.

September 29, 2016September 29, 2016

PUC declines to kill pipeline tariff, but it’s dying any way

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The Rhode Island Public Utilities Commission (RIPUC) today ruled against Conservation Law Foundation (CLF)’s motion to dismiss National Grid‘s proposed pipeline tariff and instead issued an indefinite stay. CLF argued that National Grid’s plan to charge electrical consumers to underwrite and guarantee profits for its proposed ANE pipeline is no longer viable given a recent Massachusetts Supreme Judicial Court ruling that declared such pipeline tariffs unconstitutional under state law.

Since National Grid’s plan required the consent of all New England states, CLF moved to dismiss the docket here in Rhode Island, yet Meg Curran, chair of the RIPUC, didn’t agree that the project was necessarily dead, saying she still had questions about the project. Curran felt that National Grid’s offer to withdraw their application and refile at a later date or accept a ruling that the docket be put on hold were better options.

RIPUC board member Herbert DeSimone Jr agreed. He said that dismissal would not be appropriate, and withdrawing the application would create “unnecessary redundancies” upon refiling, as all the evidence heard to date would have to be heard again and all motions re-decided. DeSimone suggested that the RIPUC issue an indefinite stay in the proceedings, with the caveat that National Grid file a progress report on January 13, 2017.

Curran and DeSimone then unanimously voted in favor of the plan. Marion Gold, the third member of the RIPUC, had recused herself.

The meeting was attended by representatives from and members of People’s Power and Light, the FANG Collective, Food and Water Watch, Toxics Action Center, Fossil Free RI, NoLNGinPVD and the RI Sierra Club.

“The Commission’s decision to delay this proceeding is a step toward the inevitable death of the pipeline tax. Forcing Rhode Island electric customers to foot the bill for a gas pipeline we don’t need defies our best interest and our laws,” Megan Herzog with the Conservation Law Foundation said. “Both Massachusetts and the federal government have rejected the project, and we will keep fighting until Rhode Island follows suit.”

“Rhode Island consumers should not have to take on the long-term risk of a new, unnecessary natural gas pipeline. We must protect electric customers from being charged for a natural gas pipeline, and the Massachusetts Supreme Judicial Court has already done this by deciding that the unprecedented cost-recovery scheme proposed by utilities is illegal, according to Mass. law,” said Priscilla De La Cruz of People’s Power and Light, also in attendance.

September 29, 2016

CLF files first-in-nation lawsuit over ExxonMobil climate cover-up

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Conservation Law Foundation (CLF) filed a lawsuit today against ExxonMobil for its endangerment of communities along the Mystic River – the first lawsuit of its kind in the nation since revelations last year about the corporation’s decades-long campaign to discredit climate science. Today’s filing comes several months after CLF submitted a formal letter of intent to sue ExxonMobil, a development that was announced at a press conference in May. The suit focuses on Exxon’s violations of both the federal Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA), laws designed to protect the health and safety of waterfront communities in the face of climate change.

“For more than three decades, ExxonMobil has devoted its resources to deceiving the public about climate science while using its knowledge about climate change to advance its business operations,” said CLF president Bradley Campbell. “Communities were put in danger and remain in danger, all to cut costs for one of the most profitable corporations in the world. It’s time to make Exxon answer for decades of false statements to the public and to regulators and ensure that its Everett facility meets its legal obligation to protect thousands of people and the Boston Harbor estuary from toxic water pollution.”

In March of this year, Massachusetts Attorney General Maura Healey joined a coalition of 17 attorneys general seeking to hold fossil fuel companies accountable for campaigns to deceive customers, shareholders, and the public about climate risk. While CLF is the first organization officially to file a civil lawsuit against ExxonMobil for this deceit, many other legal actions are likely to follow.

Damali Vidot, Chelsea City Councilor-At-Large, commented, “As a mom and a representative of my community, I feel I have a responsibility to protect my kids and those I serve against the impacts of pollution in our water. I’m standing with CLF today because I believe Exxon must be held accountable for its actions.”

CLF’s trial team for the case will include nationally renowned attorney Allan Kanner of the Louisiana-based Kanner & Whiteley, whose firm has represented states and other plaintiffs in landmark cases against major oil companies, including claims arising from BP’s Deepwater Horizon spill.

September 22, 2016

EFSB Public Hearing in Warwick a time for reflection on the process

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The Energy Facilities Siting Board (EFSB) public hearing in Warwick Wednesday evening, coming near the end of the process to decide the fate of Invenergy‘s proposed $700 million fracked gas and diesel oil burning power plant, was filled with almost philosophical reflection, with many speakers, who have sat through dozens of EFSB, town council, zoning and department meetings and honed their public speaking skills, commenting with a battle weary determination and steely resolve.

Perhaps no one summed up the emotional toll of the process better than Kerri Fagan, who reminded the board of the promises made regarding the fairness of the process by elected officials such as Governor Gina Raimondo and Senator Sheldon Whitehouse as well as by the board members themselves, then launched into a long list of irregularities and seeming violations of the process that tend to favor Invenergy and disfavor the towns people.

Six of the twelve advisory opinions, said Fagan, maintain that, “Invenergy did not provide enough information before the deadline for them to submit an appropriate advisory opinion.”

Fagan explained that the process allows for the RI Public Utilities Commission advisory opinion, “to be completed by a single person, [Herbert DeSimone Jr]” after one of the other members recused themselves because they “previously expressed support for the project.” The process of having one person make that decision was questioned, said Fagan, but was ruled appropriate by the single board member, DeSimone Jr.

“The process allows Invenergy representatives to falsely testify at open meetings,” said Fagan. “Did the process require them to acknowledge their misinformation? No. There are probably people who still believe they will receive great rate savings,” if the power plant is built. Fagan says the process also allowed Invenergy to falsely advertise meeting locations and times.

The process, said Fagan, requires that the Burrillville Town Council remain neutral throughout the process, yet Governor Raimondo and Senator Whitehouse can express their support for the project.

The process allows attorney Richard Sinapi to represent the Harrisville Water Board, but also lobby against Burrillville Representative Cale Keable‘s EFSB bill on behalf of labor unions, while also allowing his law firm to write a position opposing the Town of Burrillville’s Motion to Dismiss. “The question of conflict of interest was raised, but [Sinapi] continues to represent parties on both sides of this proposal.”

The process allows the Governor and labor unions to advocate for the process based on the jobs it will create, but the EFSB is not charged with creating jobs, but with determining energy needs and judging environmental impacts. “I don’t believe the EFSB has a responsibility to create jobs,” said Fagan,” and I don’t believe it is an appropriate outcome to consider in this setting. Yet the process has allowed this to be a major rallying cry for those that support the process.”

“It is very hard for the residents to respect the process,” said Fagan, “as it seems to be flawed in all areas. The EFSB board works for the Governor. The Governor supports the project. Companies such as Goldman Sachs and General Electric appear to be partners in both this proposed project as well as working with the Governor on statewide initiatives.

“Why has there not been a comprehensive environmental impact statement completed?”

“We can only hope that [the EFSB] will truly listen and read through why this is the wrong project and in the wrong location,” said Fagan, wrapping up, “We hope that you have the strength to fight the state wide politics and make a decision on the merits of the project and truly consider the negative, long lasting detrimental impacts that this project will bring to the Town of Burrillville.”

Other speakers that leaped out at me include Paul Roselli of the Burrillville Land Trust, who praised the RI Department of Enviornmental Management‘s advisory opinion.

Cranston native Rhoda Northup said that this was “not just a Burrillville issue, but a statewide issue. It’s also a Connecticut and Massachusetts issue. “Do we go thirsty and the power plant gets the water?” asked Northup.

Suzanne Dumas

Sally Mendzela spoke about the reality of climate change, and how plants like the one proposed by Invenergy will doom our planet.

Lynn Clark

Mary Gauvin

Smart energy conservation could easily absorb the 10,000 megawatts going offline, the power plant is not needed said Vito Buonomano.

Lisa Petrie explained her concerns as a mother, and explained why she chose to be arrested outside Governor Raimondo’s office.

Donna Woods told the EFSB members, “You do know better” than to approve this plant.

Denise Potvin

This public comment meeting was scheduled for after the last of a dozen advisory opinions were filed with the EFSB. Many who spoke at the hearing pointed out that at least six of the advisory opinions are incomplete, because Invenergy could not supply required information.

The testimony and hearing was also colored by the fact that the Burrillville Town Council will be voting tonight on whether or not to oppose the power plant in a meeting at the Burrillville High School Thursday night, and will be voting on whether to approve or reject a proposed tax treaty between the town and Invenergy on Monday evening. The groups in opposition to the power plant from Burrillville do not want the town council to approve the tax treaty, which may characterized as selling the town for a measly $92 million.

There will be one more public comment meeting, originally to be held on October 3 but not postponed, date to be determined due to Invenergy’s request for a thirty day extension as they work to secure a water source for their plant. In the meantime, the EFSB board will hold a meeting to decide on two motions to dismiss Invenergy’s application, one from the Town of Burrillville and the other from the Conservation Law Foundation (CLF) based on Invenergy’s incomplete application and failure to provide adequate or timely information when requested.

Here is the video of all the speakers:

Richard Dionne said that Invenergy should be required to submit all requested information.

Doug Geblinske of TEC-RI spoke in favor of the power plant.

Eugenia Marks, noted environmentalist former head of the RI Audubon Society, spoke against the plant.

David Brunetti questioned Invenergy’s “cicular logic” in determining that Burrillville was the location for this plant.

Kathryn Scaramella questioned the “small but meaningful savings” ratepayers will receive if the plant is built. She pointed out that the extension Invenergy requested was a violation of terms EFSB Chair Meg Curran set out in May, when she said “all deadlines are set in law.”

Mary Jane Bailey said the location chosen for the power plant was rejected when the Ocean State Power Plant was built in the 1980’s. “If it wasn’t right in the ’80s it’s not right now,” said Bailey.

Ben Weilerstein, of the Toxic Action Center said that the same kind of action taking place in Burrillville is what helped defeat the pipeline project in Massachusetts.

Meg Kerr, senior policy director for the RI Audubon Society spoke against the plant.

John McMullen, business agent for the Plumbers and Pipefitters union spoke in favor of the plant, saying there was a need for the energy and the jobs. He said that RI Building Trades supported Deepwater Wind and that a life of temporary jobs allowed him to raise his daughters and send them to college.

Irene Watson noted that her community’s public speaking skills have improved because of the countless meetings they’ve been to.

Kenneth Putnam Jr spoke from the heart. He’s 76 and 1 day old.

Betty Mancucci

John Anthony Scott

Jeremy Bailey

Roy Coloumbe said he represents two dozen iron workers from Burrillville who support the project.

Attorney Greg Mancini is Richard Sinapi’s law partner and represents the RI Building Trades.

“The power plant will be around 30-40 years from now, says Stephanie Sloman. “”I’ll be dead, you’ll be dead,” she told the EFSB members, “75 percent of the people here will be dead. I’m not trying to be funny.” It’s about the future.

Sloman gave each member of the EFSB this picture, to remind them of the species they will either help to save or destroy, depending on how they decide on the power plant.

Cynthia Crook-Pick compared the power plant to 38 Studios, both are being pushed forward with inadequate information.

Karen Palmer

Jason Olkowski

September 19, 2016September 19, 2016

CLF files motion to dismiss in power plant case

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The Conservation Law Foundation‘s (CLF) senior attorney Jerry Elmer filed a Motion to Dismiss today with the Energy Facility Siting Board (EFSB) in the case of Invenergy’s $700 fracked gas and diesel oil burning power plant planned for Burrillville. CLF’s motion is broader than the one filed by the Town of Burrillville, which concentrated on the fact that Invenergy to date has supplied no information on where the water to cool the power plant will come from, making it impossible to assess the project.

In addition to the water issue, CLF’s motion is based on the lack of advisory opinions from multiple agencies, due to Invenergy’s lack of providing needed information. This is CLF’s second motion to dismiss. As this new Motion to Dismiss says in its conclusion, “Back in January, CLF argued that this docket should be closed due to inadequate information from Invenergy.

“Invenergy’s Application lacked enough details for the parties, including CLF, to assess and respond to its proposal. The EFSB voted to let the process take its course. The Board noted that ‘further information’ might at some point be ‘necessary to conduct a thorough review and make an informed decision…’ It added that discovery would be available as part of the process.

“In the intervening eight months, twelve agencies and subdivisions have attempted to conduct the thorough reviews and make the informed decisions demanded of them by the Energy Facility Siting Act and the Board. Discovery has occurred. And Invenergy has failed to provide enough information for the agencies and subdivisions to issue fully informed advisory opinions. The process has taken its course, statutory deadlines have passed, and there still is not enough information for the Board to do its job. Invenergy’s failure to provide adequate information violated the Energy Facility Siting Act, it precluded the agencies and subdivisions from doing their jobs, and it precludes the EFSB from fulfilling its statutory mandates, Enough is enough: Invenergy’s application must be dismissed.”

UPDATE: See Jerry Elmer’s blog post about the motion here.

September 13, 2016September 13, 2016

Burrillville files motion to dismiss Invenergy application

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Because Invenergy “has either refused or is unable to provide timely information regarding its proposed water supply… its Application should… be dismissed” writes Attorney Michael McElroy, representing the Town of Burrillville, in a motion filed with the Energy Facilities Siting Board (EFSB) today.

Invenergy is proposing to build a $700 million fracked gas and diesel oil burning power plant in Burrillville, a project that has the support of both Governor Gina Raimondo and the Providence Journal. The residents of Burrillville and every environmental group in Rhode Island oppose the plan.

Invenergy’s original plan was to pump water from a well contaminated with MTBE, but on Aug 19 the Pascoag Utility District voted unanimously to deny Invenergy access to that water. Under EFSB rules and the Act that established the EFSB, “Applications must include information regarding all required support facilities, including water resources.” Without such information, writes McElroy, “The Application cannot be evaluated in a meaningful way.”

McElroy’s motion to dismiss also notes that the Town of Burrillville, the Burrillville Planning Board and the Burrillville Zoning Board of Review “have formally requested information regarding Invenergy’s water source on multiple occasions” and that “Invenergy repeatedly promised to provide such information, but to date has failed to do so.”

“In fact,” writes McElroy, “in a Motion for Extension filed by Invenergy last Friday, Invenergy stated that its ‘expects’ to have a water source ‘within the coming weeks.’ This is uselessly vague.

Jerry Elmer, Senior Attorney for the Conservation Law Foundation (CLF), “supports the Town of Burrillville’s Motion to Dismiss the Invenergy case, which was filed today. In fact, CLF has been preparing its own Motion to Dismiss on the same grounds as the Town’s Motion: The Energy Facility Siting Board (EFSB) process cannot go forward without the required Advisory Opinions from the Town; and the Town cannot prepare the required Advisory Opinions because Invenergy has failed to provide legally required information.

“Invenergy’s application to build a new fossil fuel power plant in Burrillville is incomplete, and the EFSB must dismiss the application. CLF argued its first Motion to Dismiss last January because Invenergy’s application was incomplete then; and CLF will continue to argue the same point now: Invenergy’s application remains incomplete. It is past time for the EFSB to dismiss this case.”

September 1, 2016September 1, 2016

Whitehouse not the climate champion Burrillville needs

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United States Senator Sheldon Whitehouse has a national, and even international, reputation as a climate champion, noted Rhode Island Senate President M Teresa Paiva-Weed as she introduced him to to the nearly 150 people gathered in Newport for a community dinner and Q&A. Paiva-Weed talked up Whitehouse’s concern for his constituents, saying, “Someone like Sheldon makes it a point to be home and to have a focus on the issues at home.”

But to the residents of Burrillville who drove for over an hour through rush hour traffic to attend the dinner, Whitehouse hardly seems focused on “the issues at home” and in fact, his own words belie that. His international reputation as an environmental champion is of small comfort to the townspeople fighting Invenergy’s $700 million fracked gas and diesel oil burning power plant.

Whitehouse touted his environmental concerns in his opening remarks, saying, “The good news is that… the [climate] denial operation really is collapsing. You can feel it visibly. We’re at the stage where the CEO of Exxon has had to admit, ‘Okay, climate change is real, and we’re doing it and we want to get something done.’”

Climate change, says Whitehouse, “is going to hit home for Rhode Island in a really big way and I want to make sure that I’ve done everything that I possibly can to make sure that we are as prepared for it as we can be in the Ocean State.”

Richard Dionne, vice president of the Burrillville Conservation Commission was called on by Whitehouse to ask the first question.

“When discussing the most influential senators from Rhode Island on environmental quality issues, your name is often brought up in the same sentence as our former Senator John H Chafee,” said Dione, “Not bad company to be in if I do say so myself.”

“Really good company,” agreed Whitehouse.

Dione continued, “However, our Senator Chafee would be rolling over in his grave if he knew that a 900 megawatt fracked gas power plant being proposed by Governor Raimondo was to be sited smack dab in the middle of the John H Chafee Heritage Corridor in the northwest corner of Rhode Island, on the shared border with neighboring states Connecticut and Massachusetts.

“This area has been recently designated as part of the National Park Service. The approximately 13,000 acres of protected forests, recreational areas, wetlands and conservation areas is absolutely the most inappropriate area for this type of project.

“Every environmental organization in the state of Rhode Island has come out against the project,” continued Dione, “including the Environmental Council of Rhode Island, the Audubon Society, the Nature Conservancy, Blackstone Heritage Corridor, the list goes on and on, I have a list right here…”

“I know the list,” said Whitehouse.

“At many of the public hearings I attend, invariably the question gets posed to me, ‘Where is our environmental Senator on this issue and what is he doing for his constituents in Burrillville?’ A town which, by the way, has supported your election in 2006 and 2012.

“So my question is Senator Whitehouse,” said Dione, winding up, “What answer can I bring back to the people of Burrillville, and can you commit this evening to opposing this power plant?”

“The short answer is,” said Whitehouse after a short pause, “There is a process…”

“Here we go,” said a woman at my table with open disdain.

If there was a wrong answer to give, this was it. Everyone who attended Governor Gina Raimondo’s appearance at the Burrillville High School has heard this answer before. No one takes “trust the process” seriously. It’s political dodge ball.

Conservation Law Foundation (CLF) attorney Jerry Elmer has spoken eloquently about the process. “Remember that the reason – the raison d’etre – that the General Assembly created the EFSB (Energy Facility Siting Board) was precisely to take these energy siting decisions away from the Town Councils and town planning boards,” wrote Elmer.

RI Senator Victoria Lederberg, who got the EFSB legislation through the General Assembly 30 years ago, called the siting board concept “one-stop shopping” for power plant developers. Climate change, environmental concerns and the health and safety of residents didn’t seem to be high on the General Assembly’s priorities when the EFSB was formed.

The process renders the opinion of ordinary townsfolk essentially meaningless, said Burrillville Planning Board attorney Michael McElroy. “The EFSB can take [our opinion], they can take it in part, or they can reject it.”

“There is a process,” said Whitehouse, “taking place for [the power plant] through the state Energy Facility Siting Board. They take sworn testimony, as I think you know. There are a whole bunch of local environmental groups that are intervened into that proceeding. The Conservation Law Foundation has come down from Boston to intervene in that proceeding. They have witnesses.”

Senator Whitehouse is incorrect here. The only environmental group certified as an intervenor in the EFSB proceedings is the CLF. The Burrillville Land Trust, Fighting Against Natural Gas (FANG), Burrillville Against Spectra Expansion (BASE) and Fossil Free Rhode Island were denied intervenor status, as it was felt that their interests would be seen to by the CLF.

“It’s essentially an administrative trial that is taking place,” continued Whitehouse, “I have confidence in that process. I have confidence in Janet Coit at DEM (Department of Environmental Management) who by virtue of being the DEM director is on the Energy Facility Siting Board. I have confidence in Meg Curran, chairman of the Public Utilities Commission (PUC) who by virtue of being chairman chairs that Siting Board, and there’s going to be somebody from the Department of Administration…”

Associate Director of the Division of Planning, Parag Agrawal, is the third member of the EFSB.

“It’s a process I’ve worked with from my earliest days,” said Whitehouse, “when I first came as a young lawyer to Rhode Island I worked in the Attorney General’s office and I practiced representing the people before the Public Utilities Commission.

“So I have confidence in the process.

“Congratulations,” added Whithouse, “The opposition to Invenergy, I think, has won every round. Burrillville said ’No’ on planning, Burrillville said ‘No’ on zoning, the water board said ‘No’ on water, so I think you’re, yeah, it’s a process and I know it would be easier to just yell about it but it’s a process that I think is honorable and will come to the right result.

“So I want to focus my efforts on where it will make the biggest difference. I know we’ve had some conversation, repeatedly, but I still am of the view that, with the force and strength that I have available to me, I want to apply every bit of that force and strength to the battle in Washington, which if we win it, will be immensely significant, not just to Burrillville but to all of Rhode Island and to the country and the world.

“So, sorry that I don’t have more to give than that, but I do think that I give pretty well at the office with what I do on this issue. Thank you for bringing it up though, I appreciate it.”

Burrillville resident Lynn Clark was called on to ask the next question. This seemed like a coincidence, but in fact, half the questions asked concerned the power plant in Burrillville, in one way or another.

Clark rose and with only the slightest hint of nervousness in her voice, said, “My name is Lynn and I come from the northwest corner of the state of Rhode Island. It has been my home all my life. I applaud you and I love the work you’re doing on the environmental front.

“In Burrillville, our little town has come together and we have come out strong against this giant plan. We have a lot of environmental groups [on our side], 23 currently, and we are working hard.

“I wish I could say that I am as confident in this process as you are, sir. It has been a scary process. We have been consumed by this process. I have been at every meeting, for hours, two or three meetings per week. Sir, this is a scary, scary process.

“We need a champion in Burrillville and we are asking you to please come see us. Please, come talk to us. If this Invenergy [power plant] gets built, the detriments to our little state will be just horrifying.”

Clark’s appeal to Whitehouse was raw and emotional. It’s the kind of speech people give in movies to roust tired champions into battle one final time.

But this wasn’t a movie and Whitehouse wasn’t willing to be the hero.

“I hear you,” said Whitehouse, once again echoing words Governor Raimondo used in Burrillville when she visited, “I can’t add much to what I’ve said to Richard. Thank you for taking the trouble to come down and share your passion.

Eagle Scout James Lawless with Whitehouse

“It is the National Heritage Corridor,” said Clark, not giving up, “We also have a boy scout camp up there, camp grounds… Have you been up to Burrillville?”

“Oh yeah,” said Whitehouse.

“Okay,” said Clark, “I hope you come visit us soon, sir. Thank you.”

Other questions came and went. Whitehouse was asked about the Supreme Court vacancy, grid security and the opioid epidemic. When Newport resident Claudia Gorman asked Whitehouse about the Federal Energy Regulatory Commission (FERC), he admitted that on the federal level, at least, he isn’t as certain about the integrity of the process.

“There have been several problems, at the federal level, with the approvals,” said Whitehouse, “They haven’t baked into their decision making what is called the social cost of carbon.” Whitehouse added that we don’t take seriously the problem of methane gas leaks, and that he held the first hearings on the issue of gas leaks and that we still don’t know the full extent of that particular problem…

The last question of the evening came from Cranston resident Rhoda Northrup. She rose as Whitehouse tried to bring the discussion to an end, and would not allow the dinner to end without asking her question.

“I do not live in Burrillville I live in Cranston,” said Northrup, “and what’s going on in Burrillville should not be completely on their backs. This is a global issue for all of us and if that power plant comes to our state of Rhode Island, it will set us back forty years. We will be committed for another forty years to a fossil fuel.

“That’s wrong.

“We need to move forward with wind and solar. And with all of that said, I would like to ask the senator if he has an opinion. With everything that’s been said tonight, ‘Do you have an opinion?’

“I know it’s a process,” said Northrup, “but that’s not an answer. Everybody’s telling us it’s a process. We know that. We’re walking the process. But we’re asking our leaders if they have an opinion. You must have an opinion.”

There was a short pause before Whitehouse answered.

“My opinion is that we must get off fossil fuels,” said Whitehouse.

“Thank you for that,” said Northrup.

But Whitehouse was’t finished. Lest anyone believe that by that statement Whitehouse was taking a stance against the power plant in Burrillville and matching action to his words, Whitehouse switched to his familiar political talking points.

“My opinion is that the best way to do that,” continued Whitehouse, “is to balance the pricing of fossil fuels, so that they are treated fairly in the marketplace. Right now they have a huge, unfair advantage because they don’t have to pay for the cost of the harm that they cause…”

August 30, 2016August 30, 2016

EFSB established as ‘one-stop shopping’ for power companies

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On the day the Rhode Island Senate Finance committee passed the legislation that would establish the Energy Facilities Siting Board (EFSB), Robert L Bendick Jr, the director of the RI Department of Environmental Management (DEM) asked, “I just wonder what’s going on here. What’s the driving force behind this?” [Providence Journal, April 11, 1986; pg A-15]

The question Bendick asked on April 9, 1986 strongly resonates today. Jerry Elmer, of the Conservation Law Foundation, said the EFSB “was designed to take the power to stop a proposal like Invenergy’s out of the hands of the local people… and put it into the hands of the EFSB.”

Governor Gina Raimondo refers to EFSB decision making as “the process” and asks us all to trust in it, but how are we to trust if we can’t tell if the intent of the process is to serve Rhode Islanders or to serve the energy industry?

What is going on here? Here’s some historical context.

Back in 1986, Ward Pimley, writing for the ProJo, wrote, “Sen. Victoria Lederberg, D-Providence, the sponsor, said the [EFSB] bill streamlines the approval process required for obtaining licenses to build major energy facilities for generation of electricity, treatment of liquefied natural gas, oil refineries and the like…”

Victoria Lederberg was an impressive woman and public servant. A judge, she “served as state representative from 1975-1983 ,representing the East Side of Providence, and state senator from 1985-1991… Lederberg was a trailblazer, becoming the first woman of Italian heritage to serve in the Rhode Island legislature.”

Pimley continues, “In previous testimony, Lederberg called the siting board concept ‘one-stop shopping,’ where interested developers could learn what they must do to obtain licenses and fulfill obligations to build. She said it removes jurisdictional overlapping among regulatory agencies.

“She said the bill recognizes the state’s need for ‘reasonably priced, reliable sources of energy’ and balances that with issues affecting public health and environmental impact.”

Nine years earlier, in his January 1977 inaugural address, Governor J Joseph Garahy outlined his ideas for the state’s energy objectives. Siting of energy projects heretofore had been haphazard, and based solely on the whims of industry. Garahy had a vision “to site energy facilities in light of state plans, rather than private industry decisions.” He was governor of a Rhode Island that was suffering from environmental mismanagement, and the new governor was hoping for a different approach. The EFSB, at its best, would be a realization of Garahy’s vision, but in an effort to please industry rather than regulate it, Garahy’s vision may have been compromised.

Public Utilities Commission] Chairman Edward F Burke, Pimley wrote, “testified earlier that the legislation is important because there are eight or nine potential applications for energy-generating facilities that could be built in some other state unless the licensing procedure were streamlined.

“He cited a $300-million facility proposed for Burrillville that should provide electricity by 1989 on property owned by Narragansett Electric as an example of the type of facility that can be built.”

This $300-million facility is the Ocean State Power plant, which currently uses 4 million gallons of water a day to cool its turbines.

Recognizing that the EFSB would allow industry to override the environmental concerns of the state, Sen. William C. O’Neill, today more famous as a South County bike path than a Democratic senator from Narragansett, objected. Here’s Pimley’s play-by-play of what he called a ‘hot debate’:

“You feel DEM is an obstacle,” O’Neill said. “You removed that obstacle, and you know it.”

“You’re absolutely incorrect,” Lederberg shot back.

“I’m concerned that you’re allowing other agencies to override DEM,” O’Neill said.

“I totally disagree,” Lederberg said. “This shares decision-making. DEM has an important role. That’s why we’ve made them one of the board members. It does not weaken the permit-granting power by DEM.”

Lederberg said DEM does not have veto authority to stop any project it wants, but it still is involved in the planning process.

Then Sen. David R. Carlin Jr, D-Newport, said the siting board can overrule decisions of other agencies.

“It seems it’s clearly overriding DEM,” he said.

O’Neill, seeing DEM Director Robert L Bendick Jr watching the proceedings, said he would vote for the bill if Bendick agreed that DEM’s interests would not be jeopardized by it, but committee chairman Donald R. Hickey, D-Providence, called for a vote.

“The bill was approved, 8 to 4.”

This is what prompted Bendick to ask, “What’s going on here?” adding, “If what they’re doing is overriding the department’s authority, I’m opposed to it.”

Months earlier, in an editorial, the ProJo had endorsed Lederberg’s proposal writing, “As a House member in 1979, Mrs. Lederberg sponsored a similar bill that died in the Senate. Former Gov. J. Joseph Garrahy, who supported the bill, issued an executive order embodying many of its details, but that wasn’t an adequate substitute for statutory enactment…

“Mrs. Lederberg says energy installations must be reviewed in terms of regional need and cost-effectiveness, not on the basis that Rhode Island must be totally self-sufficient in energy.” [Providence Journal February 17, 1986; page A-10] Note that Lederberg is not quoted as mentioning, and that the ProJo editorial seems uninterested in, environmental issues.

Pimley noted that the bill, as originally introduced by Lederberg, allowed the General Assembly to override an EFSB decision, but that provision was removed before passage because “it was no longer needed.”

Pimley also noted that “support for the legislation came from the Governor’s Office of Energy Assistance, the PUC and Narragansett Electric Co.”

Narragansett Electric is today a wholly owned sub-entity of National Grid.

Of special concern to all involved with the establishment of the EFSB was a proposal “to build twin natural-gas-fired plants in Burrillville. According to a plan disclosed Tuesday, the plants would be supplied by a new, 25-mile gas pipeline that would run from Sutton, Mass., to the Burrillville site and on to Cranston.” [Providence Journal, February 13, 1986; page A-14]

The very first application the EFSB took up was the Ocean State Power Plant in Burrillville.

August 24, 2016August 26, 2016

‘Essentially our advisory opinion means nothing’

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The Burrillville Planning Board meeting, held on Monday evening, was a confusing muddle that revealed the structural weaknesses of the “process” that Governor Gina Raimondo implored the people of Burrillville to trust in.

The board was meeting to vote to approve the final version of its required advisory opinion to the EFSB (Energy Facilities Siting Board) concerning Invenergy’s $700 million fracked gas and diesel oil burning power plant, a scheme that is wildly unpopular with Burrillville residents.

The powerlessness of a small, town appointed board in the face of a multi-billion dollar company with state government support was aptly demonstrated when board chair Jeffrey Partington lamented that “one of the weaknesses of this entire [process] is that we haven’t seen plans” from Invenergy.

The “process” is designed so that a town planning board has to decide to endorse or oppose a plan that will have enormous impact on the town, without seeing the actual plans.

This is by intent.

Conservation Law Foundation attorney Jerry Elmer has pointed out that the process “was designed to take the power to stop a proposal like Invenergy’s out of the hands of the local people… and put it into the hands of the EFSB.”

Hours of meetings and endless discussions have consumed the board’s time and the energy and efforts of local townsfolk. Yet the board’s own attorney, Michael McElroy, succinctly summed it up when he said, “Essentially our advisory opinion means nothing. It’s simply an advisory opinion. The EFSB can take it, they can take it in part, or they can reject it.”

At this meeting we learned that though Invenergy is confident that they can design the power plant to meet the noise ordinances set by the town, they have no intention of posting a bond to insure that this goal is met. An expert hired by the town has said that though he has never seen a power plant meet noise requirements so low and that such a thing has never been done, he believes it might be possible.

“It may be difficult and it may be expensive,” noise expert David Hessler cautioned, adding, “I think it can be done.”

Later in the same meeting Hessler admitted that he had “never seen a power plant meet the noise levels” but reiterated that he thinks this plant can be designed to do so.

Maybe this is why Invenergy won’t post a bond: What bonding company wants to insure a project that may well prove to be impossible? Not agreeing to post a bond may also be a legal strategy. The EFSB, when they decide on the final terms of the deal, might include a bonding that Invenergy agreed to, but more likely the EFSB will simply give Invenergy a waiver on the noise level, allowing the company to disregard Burrillville’s ordinance, without bringing up the bonding issue at all.

Why post a bond to meet a requirement you intend to have waived?

So all the sturm und drang over low octave vs. decibel limits on noise may well be for naught. “Essentially our advisory opinion means nothing,” said McElroy.

Here in Rhode Island we call that, “the process.”

Here’s the full video of the Burrillville Planning Board meeting.

August 22, 2016August 26, 2016

CLF moves to finish off pipeline tariff

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In response to the Massachusetts Supreme Judicial Court’s decision against National Grid’s plan to charge consumers to underwrite and guarantee profits for its proposed ANE pipeline, the Conservation Law Foundation (CLF) has moved to close the Docket on a similar proposal here in Rhode Island.

Closing the docket would essentially end National Grid’s plan. According to the motion, National Grid provided testimony in the Massachusetts case claiming that “the fate of the ANE Project is dependent on approvals of full cost-recovery in other New England states—especially Massachusetts, which National Grid assumed would provide a substantial portion of the financing for the proposed project.”

As National Grid further states, “If there is any possibility of less than full cost recovery over the entire term of the contracts, the Proposed Agreement has a negative expected value for the Company’s investors…” National Grid wants to place the risks of this investment on ratepayers, not its investors.

The motion to dismiss, filed by CLF attorneys Jerry Elmer, Megan Herzog and Max Greene, supplies several reasons supporting the contention that Docket 4627 needs to be closed in light of the Massachusetts decision.

The first reason is that the project cannot proceed without Massachusetts. “Massachusetts was to receive the lion’s share—more than 43 percent—of the Access Northeast project’s gas capacity,” says the motion to dismiss, “In effect, Massachusetts’ non-participation cripples the project.”

Even if National Grid decides to proceed with the motion, by deciding to actually assume the financial risks, says the CLF, that isn’t the plan as proposed in Docket 4627. The scheme, says the CLF, “is so substantially altered by [the Massachusetts opinion] that the Petition, as filed, fails to represent fairly the costs and benefits of the ANE Project.”

Without the State of Massachusetts buying in, “The resulting proposition is an entirely new, and raw, deal for Rhode Island. In effect, National Grid is now asking Rhode Island ratepayers to subsidize a project that it alleges will benefit all of New England; yet a substantial share of New England ratepayers—including millions of ratepayers in Massachusetts—will be insulated from bearing a proportional share of the risks of this experimental and uncertain scheme.”

Also, even though the Massachusetts decision was based on Massachusetts state law and has no direct legal bearing on Rhode Island, “the reasoning underlying the Massachusetts Supreme Judicial Court’s decision… applies with equal force here.”

Rhode Island has laws similar to those in Massachusetts regarding “the core principles of electricity market restructuring,” says the CLF, and approving National Grid’s plan “would undermine the main objectives of the [restructuring] act and re-expose ratepayers to the types of financial risks from which the Legislature sought to protect them.”

August 18, 2016August 26, 2016

CLF to PUC: Burrillville plant not needed

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The Conservation Law Foundation (CLF) today presented its arguments against Invenergy’s proposed $700 million fracked gas and diesel oil burning power plant in a brief filed with the Rhode Island Public Utilities Commission (PUC). The PUC is charged with rendering an advisory opinion to the Energy Facilities Siting Board (EFSB) the board that will have the final say in whether the proposed plant gets built. In putting together their advisory opinion, the PUC will be considering briefs from the CLF, Invenergy, the Town of Burrillville and the Division of Public Utilities and Carriers (Division).

The PUC’s mandate is to “conduct an investigation … and render an advisory opinion” as to the “need for the proposed facility,” says CLF attorneys Max Greene and Jerry Elmer in their brief, quoting Rhode Island General Laws § 42-98-9(d). The CLF “therefore presented unrefuted evidence that shows the plant is not needed, in the form of testimony from expert witness Robert Fagan.”

Though Invenergy’s expert witnesses “profess to disagree” with Fagan, they argue that the plant will provide a “social surplus” of energy and not that the plant is actually needed, says the CLF in their brief. In the recent ISO-NE forward capacity auction, Invenergy only sold half its capacity. If you subtract out Invenergy’s contribution to the energy markets the region still has nearly 1,000 megawatts of excess capacity, says the CLF.

Further, Invenergy and the Division presented no evidence at the hearings that the plant is needed. Instead, Invenergy made the claim that if the power plant sold energy in an ISO-NE forward capacity auction, this proves the plant must be needed. The CLF argues that this is incorrect, maintaining that “… a CSO is not a showing of need but the result of a complex market mechanism that takes into account other factors such as cost.”

But even if we accept the “CSO equals need” argument, says the CLF, neither Invenergy nor the Division “has presented evidence to show that the proposed Invenergy plant is needed. This is because Invenergy has proposed a two-turbine, 1,000 MW plant but has not obtained a CSO for a two-turbine, 1,000 MW plant.” What Invenergy is defending is a one turbine plant, since that’s what sold at auction.

The PUC must consider the need of the power plant as proposed. What Invenergy has proposed is a two-turbine, 1,000 MW plant. As the CLF brief makes clear, “Invenergy has not obtained a CSO for a two-turbine, 1,000 MW plant,” it has, at best, demonstrated the need for a “485 MW project.”

“Not once does the EFSB Order describe the proposed Invenergy plant under consideration as a single-turbine, 485 MW generator. Instead, the Order says the proposed plant ‘will have a nominal power output at base load of approximately 850-1,000 megawatts” and that the plant will consist of two units. So defined, ‘the proposed facility’ and ‘the Project’ do not have a CSO.”

The PUC’s advisory opinion is due at the EFSB before final hearings start in September. The briefs from all intervenors are due at 4pm today (Thursday).

August 17, 2016August 26, 2016

Court kills pipeline tariff in Mass, RI still considering

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As the Rhode Island Public Utilities Commission considers a request from National Grid to have ratepayers help subsidize a controversial pipeline project, the Massachusetts Supreme Judicial Court ruled against such pipeline tariffs in a decision released Wednesday.

“This is an incredibly important and timely decision,’ said David Ismay, the Conservation Law Foundation’s lead attorney on the case. ‘Today our highest court affirmed Massachusetts’ commitment to an open energy future by rejecting the Baker Administration’s attempt to subsidize to the dying fossil fuel industry. The course of our economy and our energy markets runs counter to the will of multi-billion dollar pipeline companies, and thanks to today’s decision, the government will no longer be able to unfairly and unlawfully tip the scales in their favor.”

The ruling by the Massachusetts Supreme Judicial Court may have an impact on National Grid‘s proposed “pipeline tariff” here in Rhode Island. The Massachusetts court deemed “it unlawful for Massachusetts to force residential electricity customers to subsidize the construction of private gas pipelines, requiring the companies themselves to shoulder the substantial risks of such projects rather than allowing that risk to be placed on hardworking families across the Commonwealth,” according the the Conservation Law Foundation (CLF) who brought the case.

The CLF was the plaintiff in the Massachusetts case. The CLF maintained in their motion to intervene in the Rhode Island case that “an electricity distribution company” entering “into a contract for natural gas transportation capacity and storage services” and receiving “cost recovery for its gas contract from electricity ratepayers” is “something that has never occurred in the United States since the Federal Power Act was enacted in 1935, during President Roosevelt’s first term in office.”

Megan Herzog, one of the two lawyers representing the CLF before the RIPUC said in a phone call that the “pipeline is a bad deal for the whole region and that the Massachusetts court affirmed that.” Though the judge ruled on the case using Massachusetts law, there are statutes in Rhode Island that reflect similar principles.

According to Craig S. Altemose, a senior advisor forthe anti-LNG advocacy group 350 Mass for a Better Future, “It is unclear how much this will be a fatal blow to any of Spectra’s proposed projects, but we have absolutely undercut their financing (to the tune of $3 billion), called into question similar pipeline tax proposals in other states, [italics added] and have given Spectra’s investors greater reason for pause. Either way, we have unambiguously won a victory that the people’s money should be not used for private projects that further commit us to climate catastrophe.”

“Today’s decision reinforces what we already know: it’s not in the public interest to subsidize new fossil fuel infrastructure. It deals a serious blow to companies like Spectra who wanted to subsidize their risky projects with handouts from ratepayers. Communities facing an onslaught of fracked gas projects in their backyards like those in Burrillville have good reason to feel hopeful right now. We urge Governor [Gina] Raimondo and the Rhode Island PUC to follow the lead of Massachusetts and reject the pipeline tax,” Ben Weilerstein, Rhode Island community organizer with Toxics Action Center said.

Though the ruling in Massachusetts has no statutory value in Rhode Island, it may establish some lines of legal reasoning that will be helpful as the Rhode Island Public Utilities (RIPUC) Commission decides on Docket 4267, the Rhode Island part of National Grid’s ambitious plan to charge electrical ratepayers not only for pipeline infrastructure investments, but also to guarantee the company’s profits as they do so.

National Grid responded with the following statement: “This is a disappointing setback for the project, which is designed to help secure New England’s clean energy future, ensure the reliability of the electricity system, and most importantly, save customers more than $1 billion annually on their electricity bills. We will explore our options for a potential path forward with Access Northeast and pursue a balanced portfolio of solutions to provide the clean, reliable, and secure energy our customers deserve. While natural gas remains a key component in helping to secure New England’s long-term energy future, the recently passed clean energy bill also presents a welcomed opportunity to support the development of large-scale clean energy, such as hydro and wind.”

Yesterday The RIPUC held a hearing on Docket 4627, asking National Grid to explain why it used such a “broad brush” in redacting information in its application. In the meeting announcement it was said that RIPUC Chair Margaret Curran thought “it is not intuitively clear how the information redacted falls within the exception to the Access to Public Records Act.” Much of what National Grid argues that much of what it wants to keep secret falls into the category of trade secrets, and releasing the information would put it at an unfair disadvantage with competitors, such as NextEra Energy Resources, LLC (NextEra).

As pointed out previously, National Grid will not release how much money ratepayers will be on the hook for if this idea is approved by the RIPUC.

Here’s full video of the hearing:

NextEra brought a separate motion to allow its lawyers access to highly confidential parts of National Grid’s application.

Here’s the full video of that hearing:

The Conservation Law Foundation (CLF) released the following statement today in response to the favorable decision from the Massachusetts Supreme Judicial Court in Conservation Law Foundation v. Massachusetts Department of Public Utilities (DPU):

‘This is an incredibly important and timely decision,’ said David Ismay, CLF’s lead attorney on the case. ‘Today our highest court affirmed Massachusetts’ commitment to an open energy future by rejecting the Baker Administration’s attempt to subsidize to the dying fossil fuel industry. The course of our economy and our energy markets runs counter to the will of multi-billion dollar pipeline companies, and thanks to today’s decision, the government will no longer be able to unfairly and unlawfully tip the scales in their favor.’

According to the opinion by Justice Cordy, DPU’s 2015 rule (“Order 15-37”) allowing Massachusetts electric customers to be charged for the construction of interstate gas pipelines is prohibited by the plain languages of statutes that have been the law of the land in Massachusetts for almost two decades.

In his opinion, Justice Cordy wrote, Order 15-37 is ‘invalid in light of the statutory language and purpose of G. L. c. 164, § 94A, as amended by the restructuring act, because, among other things, it would undermine the main objectives of the act and reexpose ratepayers to the types of financial risks from which the Legislature sought to protect them.’

July 27, 2016

CLF makes its case against need for Burrillville power plant at RIPUC hearing

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2016-07-26 PUC Burrillville 3026 — Robert Fagan

On the second day of the RI Public Utilities Commission (RIPUC)’s evidentiary hearing concerning Invenergy‘s proposed $700 million fracked gas and diesel oil burning power plant, to be located in Burrillville, Jerry Elmer of the Conservation Law Foundation (CLF) presented his witnesses who argued that the power plant is not needed and that it’s effect on ratepayers would be negligible.

The CLF’s case is one of nuance, and much depends on the views of Commissioner Herbert DeSimone Jr. DeSimone is the one commissioner on the PUC board that did not recuse themself, and the one commissioner who will write the RIPUC’s advisory opinion to the Energy Facilities Siting Board (EFSB), the body ultimately responsible for deciding on the plant. Invenergy is making the case that since the proposed plant has already sold half its capacity in an energy futures market run by ISO-NE, the plant is by definition needed. This is the default position not only of Invenergy, but also of the RI Office of Energy Resources (OER) and the RIPUC, if the questioning from their attorneys at the hearing are any indication.

The CLF is maintaining that what ISO-NE did was purchase extra power, and if Invenergy’s plant is taken out, there will still be more than enough electricity on the grid to power all of New England. Also, going forward, as more and more renewables come on line, the need for the plant will go down, not increase. Unfortunately, ISO-NE is somewhat of a black box. Though they publish thousands of pages on how their energy auctions are run, figuring out why one plant’s energy was purchased and another was not is virtually impossible, and no one from ISO-NE was at the hearing to answer questions.

As for ratepayer savings, on the first day of the hearing Invenergy’s attorney Alan Shoer called his witnesses and made his case that the savings to ratepayers would be significant. On the stand, John Niland, director of development for Invenergy admitted that the $280 million number he gave to Burrillville residents earlier in the year was false, and that he knew it was false when he presented it. The true number was closer to $36 million in rate payer savings.

2016-07-26 PUC Burrillville 3031 — All lawyers at the bench for a huddle

The CLF’s witness, Christopher Stix, also ruled out the $280 million number, saying it took him one week after the ISO-NE auction results were published to perform his calculations that the actual savings ranged from between zero and $36 million. John Niland testified that Invenergy did not know this number when he falsely gave the $280 million figure to the audience in Burrillville seven weeks after the auction published its results.

It is up to DeSimone to decide whether or not a savings of between zero and $36 million to rate payers is worth the additional pollution, the despoilment of Burrillville’s pristine habitats and the continued dependency on fracked gas for our energy needs in New England for decades to come. It is worth noting that $280 million was a number too big to ignore, from an economic standpoint, where as zero to $36 million (which is a bell curve, the actual number may be closer to $20 million) is not nearly as tantalizing.

The CLF’s first witness, Robert Fagan, testified for a marathon five hours.

“We know now is that the Invenergy plant is not needed for electrical needs in New England,” said Fagan, and under cross examination he did not falter.

Getting through Fagan’s testimony required defining a host of terms and acronyms. ICR, LOLE, NERC, sloping versus vertical demand curves etc. were defined and discussed. It was very technical, but it served two functions. One, it established Fagan’s expertise, something Invenergy tried to call into question in pre-filed testimony, and two, it helped prove Fagan’s case that the proposed power plant was not necessary.

Though high-powered attorneys Alan Shoer and Jerry Elmer set the tone for the meeting, it’s most likely that RIPUC attorney Cynthia Wilson-Frias will have the most impact on Commissioner DeSimone’s advisory opinion, given that she will likely help author it and DeSimone can be expected to lean heavily on RIPUC’s in house legal expertise. Wilson-Frias asked pointed questions about the fact that Invenergy already sold some of its expected output to ISO-NE. She indicated that since the energy sold, it is by definition needed. Fagan countered this logic well, his entire testimony was in fact a rebuttal of sorts to this idea, so it comes down to how much weight Wilson-Frias gives Fagan’s views versus the more mainstream “free” market ideas favored by Invenergy.

The last day of the hearing is today, and unfortunately I will not be in attendance. I hope to get an update from Jerry Elmer after the hearing.

You can view the entire days proceedings below:

July 26, 2016July 26, 2016

Invenergy’s John Niland under oath at PUC hearing for Burrillville power plant

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There were two big reveals at the first day of the PUC evidentiary hearing in Warwick on Monday. First, John Niland, director of development for Invenergy, admitted under oath that he knowingly gave false information to the EFSB at the March 31, 2016 EFSB hearing held at the Burrillville High School. Second, Invenergy’s proposed plant will not be clean: It’s emissions will be higher than the the current New England average of all power plants.

Everyone seemed surprised that the evidentiary hearing at the Public Utilities Commission (PUC) regarding Invenergy’s proposed $700 million fracked gas and diesel oil burning power plant for the Town of Burrillville wasn’t packed with Burrillville residents. The Warwick police officer seated at the back of the room looked almost bored. Michael McElroy rescinded his motion to hold the hearing in a larger venue because, as his co-counsel Oleg Nikolyszyn said, “there are plenty of seats.” Of course, holding the meeting 40 minutes outside Burrillville during a work day was a surefire way to limit attendance.

The Public Utilities Commission hearing is being held to help the one PUC commissioner that did not recuse himself craft an opinion on whether or not the plant is needed and what effects the plant will have on ratepayers. The one commissioner is lawyer Herbert F. DeSimone, Jr.. Of his co-commissioners, Margaret Curran is on the Energy Facilities Siting Board (EFSB), the body ultimately deciding on Invenergy’s application. Obviously she cannot write an advisory opinion to herself. Marion Gold is on record for having supported the plant during her stint as the executive director of the RI Office of Energy Resources. This leaves only Herbert DeSimone on the board. He will author the advisory opinion to the EFSB.

For what it’s worth DeSimone ruled early on that having only one person on the board does not violate any rules, as he will not be making any decisions, but will simply be crafting an advisory opinion.

Lawyers Alan Shoer, representing Invenergy and Jerry Elmer, representing the Conservation Law Foundation (CLF), delivered opening statements. Shoer argued that the plant is needed, that it will reduce air emissions and save ratepayers money. Elmer explained that Invenergy’s promises were unlikely.

The first witness was Building Trades president Michael Sabitoni. He testified on the “socio-economic impacts of project” i.e., the jobs. Elmer objected, because jobs are not within the scope of this hearing. DeSimone overruled Elmer, saying, “I’ll allow the statement to stand but I’ll give it the weight that is appropriate.”

Under grilling from Burrilville’s lawyer Michael McElroy, Sabitoni estimated that 80 percent of the jobs created by this project will be from Rhode Island. He had no estimates on the number of jobs that will be created for Burrillville. He said that the members of his unions will be well placed to get the more permanent jobs on offer at the plant as well.

Next up was John Niland, director of development at Invenergy. His testimony stretched out for over 80 minutes, and there were some interesting exchanges along the way.

Under oath and under the examination of Jerry Elmer, Niland admitted that when he said, to the EFSB on March 31 in Burrillville, that Rhode Islanders would save $280 million on electricity after the new plant was built, he knew the number was wrong. He said that he didn’t have a better number to give, so he went with the older, wrong number. The true savings cannot be over $30 million, and could be closer to zero, maintains the CLF.

Under examination, Jerry Elmer also forced Niland to concede that Invenergy’s claim that coal and oil together account for 28 percent of New England’s energy footprint is incorrect. The true number is closer to six percent.

Niland claimed that since Invenergy sold half it’s output in the most recent energy auction, the plant is needed, by definition. Burrillville’s lawyer Michael McElroy pointed out that if only half the proposed plant’s energy is sold, then by Niland’s own logic only half the plant is needed. And if half the plant is all that’s needed, savings to ratepayers can be expected to be “substantially less.”

Niland ageed.

The growth of renewable energy sources will reduce the need for the power plant over time, said Niland. The plant has a life expectancy of 40 years. Niland knows of LNG plants still operating after 60 years. Niland admitted that Rhode Island’s dependency on fossil fuels will increase once the plant is built. If the plant is built, Rhode Island’s carbon footprint will go up, admitted Niland. Though technically, said Niland, given that RI is a net energy importer our emissions, “could be reduced.”

McElroy was not happy with Niland’s caveat. Within Rhode Island’s borders, asked McElroy, “Emissions will go up, correct?”

“I believe so,” said Niland.

McElroy asked about why Burrillville was chosen as a location for the plant. Niland said that the location was chosen due to its proximity to the Algonquin gas pipeline and electrical transmission wires. (Both of which were updated recently, I should note.) Niland’s job is to locate and develop projects like the one planned for Burrillville. He was initially lured here because of the state’s high energy prices, near $17 a killowatt hour. The new lower prices at the recent energy auction, closer to $7, will probably reduce interest in bringing large projects like this to the region, said Niland. If an energy plant doesn’t clear the energy auction, said Niland, it isn’t needed.

2016-07-25 PUC Burrillville 3021 — Ryan Hardy

The next and last witness for Invenergy was Ryan Hardy. Hardy is the person who prepared Invenergy’s report that calculated the rate savings should the plant be built. Jerry Elmer began his cross examination by handing Hardy a calculator and asking him to run the numbers, based on Invenergy’s own specs. After a long pause, Hardy came up with the plant producing 817 pounds of CO2 per megawatt hour. Hardy’s written testimony was 760 pounds. Ryan countered that he was basing his number on estimates of actual plant use, which he estimated to be about 70 percent of capacity. The numbers Elmer had him calculate were maximum possible output.

Also, said Hardy, the plant will be “primarily run on LNG, never on fuel oil, unless gas is not available.”

However, both of Hardy’s estimates are over the New England average, meaning that the plant can’t reduce emissions, because the plant’s emissions are higher than the average plant emissions in New England.

Elmer asked Hardy about ratepayer savings next. “Was your analysis of FCA-10 [the electricity auction] based on selling both turbines?”

“Yes,” said Hardy.

“Were you wrong about that?”

“Yes.”

“Was it reasonable for Niland to estimate savings of $280 million when he knew otherwise?”

“Yes,” said Ryan.

You can read Jerry Elmer’s thoughts about day one of the hearing here.

2016-07-25 PUC Burrillville 3009 — Michael Sabitoni

July 15, 2016

CLF announces historic settlement on Johnston Landfill

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Conservation Law Foundation (CLF) announced a historic settlement agreement today in its lawsuit against the owners and operators of Central Landfill in Johnston, Rhode Island. In December 2013, CLF filed a Clean Air Act suit against the Rhode Island Resource Recovery Corporation (RIRRC), Broadrock Gas Services, LLC (BGS), and Rhode Island LFG Genco, LLC (RILG). RIRRC owns Central Landfill, BGS operates the gas collection system, and RILG uses the gas to fuel their electricity-generating facilities located next to the landfill. CLF’s suit alleged that the gas generated at the landfill was being inadequately collected or destroyed and that the landfill’s owner and operators failed to obtain the legally-required operating permit since 1997.

“Landfills produce gases that must be controlled in order to avoid risks to the health and wellbeing of surrounding communities,” said CLF attorney Max Greene. “Today’s agreement goes a long way toward enhancing gas generation and collection at Central Landfill in Johnston. By harnessing the gas for electricity generation and preventing it from escaping into the atmosphere, we protect our neighborhoods for generations to come.”

Under the settlement, RIRRC, BGS and RILG will hire an engineering firm to perform an assessment and recommend projects that will enhance gas generation and the performance of the collection system. The engineering firm also will examine and recommend improvements to an existing network of ambient-air monitors that test for hydrogen sulfide, a landfill-gas component, in the surrounding neighborhoods. The parties will evaluate these recommendations and undertake such projects.

In addition, for the first time, the Rhode Island Department of Environmental Management intends to issue a single Clean Air Act operating permit to govern the landfill.

“The issuance of a single operating permit covering the entire landfill is deeply important,” continued Greene. “Judges have called this type of permit ‘a source-specific bible for Clean Air Act compliance.’ Now, Central Landfill will finally have this important tool.”

[From a press release]

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