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.

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.

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.

Smaller than the power plant proposed for neighboring Burrillville, the “Killingly Energy Center” is slated to produce 550 MW of unneeded energy. It will produced nearly 2 million tons of emissions per year, adding to the emissions of the Lake Road Generating Facility, an 840 MW power plant already located in Killingly. Emissions, of course, know no political boundaries, so large parts of Rhode Island will be subjected to this increase in pollutants.

The Killingly power plant is to be built in a residential neighborhood within a mile of 460 Killingly housing units. At least five schools and day cares, over 5,000 students, are within three miles of the proposed plant. Wyndham County, where Killingly is located, has asthma rates 18 percent higher than the rest of Connecticut.

To power the plant, a pipeline connection to the main AIM pipeline will be built, crossing the Quinebaug River, Wyndham Land Trust, the Airline Trail, Pomfret Audubon Society and Bafflin Sanctuary. Each area a precious resource.

Like Burrillville, the proposed power plant needs water. There is a concern that the aquifers will be strained and that residents will suffer a lack of water given that the power plant needs 90,000 gallons a day when burning fracked gas and as much as 400,000 gallons a day when burning diesel oil. Also, like Burrillville, there are safety and and noise issues to consider when a plant like this is built in a residential area.

The Town of Killingly is categorized as a distressed community. Like other areas where these types of facilities are targeted, there are environmental justice issues to be considered. Very often the facilities are like these are aimed at low income communities that lack the financial means to either fight the power plant or resist the financial carrots dangled by the company building the plant.

NTE Energy, the prospective builder, has never completed a power plant. Formed in 2009 as a private equity funded company, there is a worry that the company will build the plant and sell it off for a quick profit. Currently the company has six power plants in development, two of which are under construction. The company has no experience in operating or maintaining a power plant.

Also, like in Rhode Island, the residents most impacted by the siting of a power plant in their community have no say in whether or not the plant will be built. The Connecticut Siting Council, the equivalent of Rhode Island’s Energy Facility Siting Board (EFSB) makes the final decision regarding the power plant in Killingly. The Siting Council has already determined that Connecticut has an excess of electricity generation into 2020, yet is still considering the power plant in Killingly.

Opposition to the power plant has begun in Killingly. The group is called Not Another Power Plant, and I found that they were very knowledgeable about the situation in Burrillville. I went there Monday afternoon to talk with residents who were holding signs and a press conference to get the word out. Below I speak to Connecticut State Senator Mae Flexer and Connecticut State Representative Danny Rovero about their opposition.

On Thursday October 20th beginning at 3:30 pm there will be a public field review of the proposed NTE/KEC site on Lake Road, Dayville. This will be an opportunity to see the area where NTE hopes to build the power plant. Afterwards there will be a Public Hearing with the Connecticut Siting Council at 6:30 pm at the Killingly High School Auditorium. Public comment will be heard at this meeting.

During a Woonsocket City Council meeting Monday evening it was revealed that the City of Woonsocket is in some kind of negotiations with Invenergy regarding its proposed $700 million fracked gas and diesel oil burning power plant. When the question was brought up, City Solicitor Michael Marcello answered only that the city council had been briefed in closed session and would not directly answer the question. As to the question of a power plant being built in the city, Marcello gave a direct answer: No.

City Councillor Daniel Gendron put an item on the city council’s agenda because of the number of calls he had received based on the rumors that such a deal was in the works. He also said that he prepared his question carefully, “so that I could read the question and give the administration [of Mayor Lisa Baldelli-Hunt] the opportunity to answer that question definitively. So what I would like to ask, and I’m asking this of the administration and of my fellow councilors, but specifically the administration. I was hoping the Mayor would be here to respond but, in her absence, somebody in the administration could answer.”

Gendron asked two questions. The first concerned rumors that Invenergy was in negotiations to locate the power plant in Woonsocket, as an alternative to locating the plant in Burrillville, where there has been fierce local and statewide opposition. The second concerned the possible sale of water to Invenergy, for the plant planned for Burrillville.

“My question is a simple question,” said Gendron, “Has the administration had any discussion or communication with Invenergy or anyone else with respect to either siting a power plant in the city or about acquiring water from the city to be used in connection with a power plant?”

Council President Robert Moreau suggested City Solicitor Michael Marcello answer the question. Gendron repeated once more that he was going to address it to the mayor, but would be satisfied with an answer from Marcello.

“Councilor,” answered Marcello, “as you know you are a member of the council and you were briefed by the administration in closed session.” The closed session Marcello refered to took place at 5:30pm, shortly before the 7pm city council meeting. “The reason that we have a closed session,” said Marcello, “is to keep communication closed until such time as the law requires us to disclose it. I will say that emphatically, that there have been no discussions with the administration, that we’re aware of, that I’m aware of, to relocate the power plant within the City of Woonsocket.

“But with regard to your second question,” said Marcello, “you received a briefing in closed session, and that’s where that information must lay right now. In closed session.”

To the residents of Burrillville who had filled the city council chambers, this was confirmation of weeks of rumors.

“At the direction of our council I will not taint the sanctity, if you will, of the executive session meeting and I will not pursue this any further at your direction Mr. Marcello,” said Gendron.

“In summary,” said Council President Moreau, “that was pretty much what you’re going to hear about it tonight from this council because we had an executive session and the City Solicitor explained that we need to abide by that forum.”

“I put this item on the agenda tonight,” said Gendron, “for discussion purposes… that is what precipitated the executive session that took place prior to this meeting.” The item was “an effort to bring out the truth,” said Gendron. “I think that we needed to start this talk, we needed to squelch some of the rumors.” The solicitor denied completely that there was a power plant coming to Woonsocket, said Gendron. Before today, “none of [the city council] knew what was going on, and that was the benefit of the executive session.”

To the dozens of Burrillville residents and anti-fossil fuel activists from around the state, the city council meeting confirmed the existence of the “third option” ominously hinted at by Attorney Richard Sinapi at a meeting of the Harrisville Fire District and Water Board back in August. At that time Harrisville voted not to sell water to Invenergy, and it was known at that time that Pascoag was also going to vote against selling the power plant water.

Rumors had been swirling for weeks that Woonsocket was in negotiations with Invenergy regarding water. RI Future had put in an Access to Public Records Act request with the city on September 23rd regarding this issue. BASE (Burrillville Against Spectra Expansion), took to Facebook to ask people to call the office of Mayor Lisa Baldelli-Hunt “and urge her to stop negotiating a water deal with Invenergy.”

The time frame on any potential deal between Invenergy and Woonsocket is difficult to determine. Yesterday Invenergy was given ten days to prepare for a “show cause” hearing with the Energy Facilities Siting Board (EFSB). EFSB board member Janet Coit, who noted that Invenergy lacks a water plan said that, “from the perspective of the board, we have a big gap.” As part of the show cause hearing, Invenergy will have to submit their new water plan. Though Councillor Roger Jalette, (who is running for Mayor of Woonsocket) said that Invenergy might be making their case before a new city council after the elections in four weeks, Invenergy might not have that much time to wait until after an election.

There was also the hint that this issue may have implications for Woonsocket’s mayoral race between Jalette and Baldelli-Hunt, as Jalette said he is sympathetic to Burrillville’s cause.

During the public commentary period, the Woonsocket City Council was given a taste of what the Burrillville Town Council has been experiencing for nearly a year, that is, speaker after speaker objecting to new fossil fuel infrastructure being built in our state at a time when climate change threatens us all. “We don’t want it in our backyard,” said Ray Trinque of Burrillville, “and we don’t want it in your backyard and we don’t want it in anyone’s backyard…”

Burrillville resident Denise Potvin was born in Woonsocket and has family there still. Potvin said that Alan Shoer of Adler Pollock & Sheehan, one of Invenergy’s attorneys, “conveniently happens to be an attorney for the City of Woonsocket’s water department.” She mentioned that attorney Richard Sinapi is an attorney for Harrisville and large labor union with an interest in seeing the power plant built. “A lot happens behind the curtain,” said Potvin. She ended by suggesting the council educate itself by reading articles like this one on RI Future.

City Council Vice President Albert Brien interrupted public testimony and explained that right now, there was no proposal before the council.

Councillor Roger Jalette is leaving the city council as he runs against Lisa Baldelli-Hunt for Mayor of Woonsocket. “I want you to know that I am very very sensitive to your plight,” said Jalette. Jalette warned that there will be a new city council in four weeks, after the election, as neither he nor Council President Moreau will be on the council.

Burillville resident Jeremy Bailey pointed out that City Solicitor Michael Marcello is also a Ste Representative. Rep Marcello voted against a bill in May that would have allowed Burrillville residents to vote on any proposed tax treaty the town made with Invenergy. Rep Marcello was one of two representatives to attend the Northern Rhode Island Chamber of Commerce’s Eggs & Issues Breakfast Thursday morning where Invenergy‘s director of development John Niland was the guest speaker.

The Energy Facilities Siting Board (EFSB) today decided to issue an executive order demanding that Invenergy show cause as to why the docket for their proposed $700M fracked gas and diesel oil burning power plant shouldn’t be suspended until such a time as the company can produce a reasonable plan for where the company intends to get the water needed to cool the plant. The show cause hearing has been scheduled for October 13.

The suggestion for the show cause motion came from EFSB board member Janet Coit, who noted the lack of a water plan and said that “from the perspective of the board, we have a big gap.” All meetings past the October 10 date have been canceled, and may or may not be re-scheduled depending on the outcome of the show cause hearing.

The meeting of the EFSB in Warwick also dealt with a short list of procedural motions. The Harrisville Fire District had entered a late motion to intervene, but were denied without prejudice. This motion gave attorney Richard Sinapi the opportunity to rise and speak to the board in favor of Harrisville, only to be told, for the second time, that there was no input allowed from attorneys or the public at this open meeting.

Two motions by Invenergy, to hold confidential some evidence from previous hearings, including the testimony of Ryan Hardy and Invenergy’s responses to the Office of Energy Resources second set of data requests, were approved.

The decision as to whether to change venues for the final hearings on the project was put on hold. Anticipating great public interest in the hearings, and noting that the hearing room at the Public Utilities Commission where the EFSB meets is small, the Town of Burrillville asked for a change to a larger venue.

Instead, the EFSB is exploring options to televise the proceedings on both cable access and the web. The EFSB’s Todd Bianco told me after the meeting that some effort will be made to archive the videos so that people could watch them if their schedules prevent them from watching live.

Board member Parag Agrawal said that “fairness and transparency” were the most important considerations, so broadcasting the hearings was important.

Invenergy has sold energy into a forward capacity market. Not building the plant or completing construction late could cost the company millions. The company initially asked that the application be fast tracked. Today’s decision by the EFSB essentially amounts to another extension, and ultimately could result in a suspension or even dismissal of the docket if no credible water supply can be found.

The town council approved the resolution 7-0. The resolution also included a provision that Council President John Pacheco III will testify against the power plant before the Energy Facilities Siting Board (EFSB) and ask other municipalities to join the town in opposition.

The vote in opposition breaks a long period of “neutrality” on the part of the town council, which the council maintained was necessary so as to not give the appearance of trying to politically affect the outcomes of advisory opinions from the town planning and zoning boards.

“The siting board and Invenergy can certainly never say we did not follow the process,” said Council President Pacheco.

But in the audience, townspeople were holding bright yellow signs that said, NO TAX TREATY, a preview of Monday night’s town council meeting to vote on an agreement with Invenergy to collect $94 million or more from Invenergy if the power plant is ultimately approved. Townspeople say that approving this tax treaty undercuts the council’s statement of opposition.

One by one the town council members explained their opposition to the project. Councillor Kimberly Brissette-Brown, who was absent, had her statement read by the town clerk. There was no public comment allowed, but the bright signs held by audience members spoke volumes.

On a personal note, I was extremely touched by the comments made by Councillor David Place and the reactions of the townspeople to the mention about RI Future and the work we’ve done on Burrillville. Thank you.

To be continued on Monday night. Here’s the full video:

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

The last couple of weeks produced a flurry of advisory opinions on Invenergy’s power plant proposal.  The list is here in the Public Utility Commission docket.  I should have read all of these documents, but I have not and may never.  Why should we keep critiquing the emperor’s clothes knowing full well that he has none?

I did start reading the advisory opinion of the Rhode Island Department of Environmental Management.  I keep getting distracted, as I am reminded of sections of Mary Wood’s Nature’s Trust.  Take this:

Bureaucratic acronyms and techno-jargon give a ready-made veil to ongoing political manipulation, operating to ward off oversight from judges, journalists, environmental groups, and citizens. Every environmental agency uses dozens or even hundreds of acronyms that blather an alphabetic mix meaningless to the public. Clean Air Act regulations, for example, display the acronyms BACT, BART, MACT, RACT, SIP, NSPS, NSR, CEMS, HAPS, LAER, NESHAPS, PPM, NAAQS, PSD, TAMS, VOC, and dozens of others. Regulations under the Resource Conservation Recovery Act use UST, TSDF, TCLP, SQG, MCL, LQG, HSWA, CAMU, CAS, CESQG, and many more. Encasing agency decisions in an impenetrable vocabulary, this mumbo jumbo goes far in shielding bureaucrats from outside scrutiny.

In the opinion I struggle with I read about API, AST, COA, MDNR, MTBE, NSA, OPC, PUD, PW-3A, RIRPP, RIWAP, ROW, SAS, SDM, SGCN, ULSD, …   There is no excuse for this kind of writing: word processors for decades have given users the ability to expand their abbreviations.

Collectively, we have spent countless hours exposing the science missing in these opinions. Unfortunately, very little of what is relevant is consistent with the statutes that govern the process.  As Mary Wood puts it:

Despite its original goals, environmental law now institutionalizes a marriage of power and wealth behind the veil of bureaucratic formality.

Indeed, the evidence gushes off the page in the documents of our hallowed process.  The problem is not that the professionals of the various departments do not understand the science.  The problem is that they are—undoubtedly much to their chagrin—subordinate to politically appointed masters.  They are subject to statutes that reflect decades of industry insider subversion of the Clean Air and Clean Water Acts.

Government as a whole is failing. The short version of the story is that the White House serves at the pleasure of the fossil fuel industry.  The same applies to our state leadership, the majority of  Congress, and our state legislature.

Two government branches down, one to go.  Mary Wood explains what happened to the third, the judiciary.  It has largely excused abandoned its fiduciary duty to preserve Nature’s Trust for present and future generations.  Mary Wood lists the following problems:

1. Closing the gates: the standing doctrine—To win a law suit you must have standing: you have to show that you have a personal stake in the outcome of the suit you bring.  Apparently, in the world of our revered American law schools, we’re all from outer space and have no stake in the health of this planet.
2. The judicial deference syndrome—Supposedly, regulatory agencies have technical expertise and objective scientific facts on their side.  Thus, the courts shy away from “micro-managing” these bureaucracies.  Of course, the courts disregard that many decisions that are presented as scientific are products of political pressure and a process captured by industry.
3. Narrow (often procedural)  grounds—Ecological matters are rarely the issue in court.  What counts is whether the process followed its often ambiguous and arbitrary rules and regulations.  The courts end up dealing with form rather than substance.
4. The ineffectual remedy—When a court case is occasionally won, the winner must, once again, spend limitless resources to implement the often inadequate remedies.
5. The remote public—by the time the chainsaws, bulldozers, and dynamite arrive, people are still trying to master the acronyms, but the process has already ended.  It’s too late. 

The Rhode Island process puts our politically appointed Director of the Department of Environmental Management in an impossible position, inaccessible behind a firewall on the Energy Facility Siting Board.  Corrupted statutes silence the experts in the various departments, but the statutes have done their dirty work and the upshot is clear and all we have is:

• A process inconsistent with the “duty of the general assembly to provide for the conservation of the air, land, water.”
• A process designed to clothe the villainy of naked capitalism.

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.