Energy Facility Siting Act

This Wednesday, September 21 at 6pm, the Energy Facility Siting Board will conduct its next public hearing about Invenergy’s proposed fossil-fuel-fired power plant in Burrillville. The hearing will be held in the Toll Gate High School Auditorium, 575 Centerville Road, Warwick.

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:

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.
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.
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.
The ineffectual remedy—When a court case is occasionally won, the winner must, once again, spend limitless resources to implement the often inadequate remedies.
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.

The revelation that the Burrillville Town Council, under the leadership of John Pacheco III, has been engaged in ongoing negotiations with Invenergy LLC over potential tax breaks for their Clear River Energy Center gas and oil burning power plant, came as a surprise to many Burrillville residents Wednesday evening. Burrillville Town Solicitor Oleg Nikolyszyn, in a comment on the piece that broke this story objected to the word “secret” saying that the negotiations he and Town Manager Michael Wood were engaged in were “due diligence” and “not behind anyone’s back, or in secret, but openly.” He also says that, “Until now, the Council has not been engaged or negotiating with Invenergy.”

Nikolyszyn feels that he and the Town Manager, “would be remiss if we did not take into consideration what financial benefit the Town would receive.” They are doing, “what professionals are expected to do in a business environment.” At the meeting Nikolyszyn said that the town had a “fiduciary duty” to enter into negotiations.

That’s not what the law says.

Conservation Law Foundation senior lawyer Jerry Elmer maintains that, “one of the most effective ways that the Town Council can seek to prevent the siting of the Invenergy plant is to deny Invenergy the tax treaty it seeks.”

Not entering into a tax treaty with Invenergy will not necessarily stop Invenergy in its tracks, the plant could still go forward and pay higher taxes to the town, taking a hit to their profitability in the process. Elmer reminded me that the profitability of the plant has already suffered two recent hits “when (a) Invenergy cleared only one of two turbines in the February 8 Forward Capacity Auction; and (b) the SENE zonal clearing price had zero premium over the clearing price in Rest of Pool, unlike the previous two auctions in which our zone cleared at a huge premium.”

How many more hits to the plant’s profitability can Invenergy afford?

At Wednesday evening’s Town Council meeting Nikolyszyn was correct when he said that Burrillville has no say in whether or not the plant gets approved for Burrillville. As Elmer helpfully explained,

The underlying reason that the General Assembly created the Energy Facility Siting Board (EFSB) by enacting the Energy Facility Siting Act (EFSA), was that it was assumed that — whenever any major power generation facility is planned to be built anywhere — the local residents in the local town would oppose the plant because of local impacts. The purpose of the EFSA is to take the power out of the hands of the local officials, who may be subject to constituent pressure to oppose the plant. That is the reason that all the opinions that the EFSB gets under the EFSA (from DEM, OER, Town of Burrillvile, etc.) are advisory opinions only. The final decision to grant or deny a permit to build the plant rests solely with the EFSB. This was the purpose of the law.”

However, “it is in the sole discretion of the Town Council whether or not to grant a beneficial tax treaty to Invenergy. The Governor cannot force them to do that. The EFSB cannot force them to do that.”

Pacheco and other Town Council members said over and over that they need to be neutral ahead of any reports that their boards are preparing for the EFSB, because it was the Town Council that nominated the members of these boards. This is of course nonsense. Governor Gina Raimondo, who nominated the members of the EFSB board, has been a major proponent of the plant. Where is her neutrality? Why is she not afraid that her support for the project will affect the people she’s nominated to board positions?

This pretension of neutrality merely shields the Town Council from their responsibility to their constituents, who overwhelmingly do not want this plant. Nikolyszyn might think this is all business as usual but he forgets: government is not business.

The Town Council would be completely in their power to pass a resolution declaring that they will not, under any circumstances, engage in a tax treaty with Invenergy. The company could then decide to go forward with the plant or not, but not only will their profitability suffer, so will their public image.

Reaching a deal with the Town will give Invenergy and Governor Raimondo political coverage. With a tax treaty in place it will be harder to say that the plant was forced on the Town against the will of the people since the company negotiated with the representatives of the people for an “equitable” deal.

Democracy will have worked, supposedly.

Not engaging with Invenergy sends a strong message that this plant is not wanted by the people of Burrillville. The plant can then only proceed against the will of the people, against the wishes of a democratically elected government. A Governor that blatantly disregards the will of the people in such a situation is a tyrant. A company that builds an unwanted facility against a community’s interests is not a community partner but a despoiler.

Now is not the time for wishy-washy politics, business as usual and secret (not secret) negotiations.

If the Burrillville Town Council can’t take a stand, it’s time for the citizens of Burrillville to find new Town Councillors.

Tag: Energy Facility Siting Act

Scratch the Energy Facility Siting Board process and find naked capitalism

Burrillville Town Council can stand up to Invenergy