CLF Files Motion to Dismiss Invenergy Case (Again)

Jerry Elmer

The tide may be turning in the Invenergy case.

On Tuesday, September 13, the Town of Burrillville filed a Motion to Dismiss the Invenergy Docket. This was important because the Town Council had been widely seen as being very supportive of the Invenergy proposal. The Town’s Motion is based on the fact that Invenergy has lost the only source of water it had for the plant; Invenergy keeps promising to tell the Energy Facility Siting Board (EFSB) what its new source of water will be, and Invenergy has failed to do so. As of now, Invenergy has no source of water, and (says the Town) the EFSB must dismiss this obviously (and grossly) incomplete application.

Today, September 19, CLF is filing its own Motion to Dismiss the Invenergy Docket. Although the Town’s Motion is good, CLF’s Motion is significantly stronger and better – and I can say that without any fear of being accused of self-promotion, because the Motion is the work of my CLF colleague, Max Greene.

The Town’s Motion seeks dismissal solely on the grounds that Invenergy has lost its supposed source of water, and has been unable to provide any information on a possible new source.   CLF’s Motion to Dismiss is significantly broader; it is also based on the fact that Invenergy has so completely failed to provide meaningful information to numerous state agencies that fully 6 of the 12 required, mandatory Advisory Opinions from sister agencies to the EFSB could not be completed.  Indeed, 6 of the 12 agencies informed the EFSB – in more or less scathing language, depending on the individual agency – that the information provided by Invenergy was incomplete and/or evasive, and that it was impossible for those agencies to provide Advisory Opinions.

The Energy Facility Siting Act’s provisions are clear and mandatory.  Without the required Advisory Opinions, the EFSB cannot approve an application.

I believe that the events of the past several weeks may signal a meaningful change in the posture of the case.  Invenergy keeps promising that it will announce its new source of water for the plant, and keeps not doing so.  If and when it does finally reveal that new source of water, the plan may have serious problems associated with it (why else the delay?), and certainly will be subject to heightened scrutiny by the parties, the Department of Environmental Management, and the EFSB.  The EFSB clearly cannot proceed to a hearing without the required Advisory Opinions, but the statute does not allow delay.

Meanwhile, it is very significant that the Town of Burrillville has clearly turned against the plant.  The Invenergy plant cannot and will not be built unless Invenergy can enter into a tax treaty with the Town, which would give Invenergy a huge discount on the Town’s usual property tax rate. But if the Town Council is now truly opposed to Invenergy, the Town can simply refuse to enter into a tax treat (or can offer a preposterously high rate). This alone would kill the plant.

Last January, CLF filed its first Motion to Dismiss the Invenergy application, saying that the application was incomplete in several important respects. (CLF reminds the EFSB of this twice in the Motion filed today – in the last sentence on page 1; and in the first sentence of the Conclusion on page 16.) CLF lost that Motion back in January because the EFSB ruled that Invenergy should have a reasonable amount of time to fill in the blanks, as it were.

But now it is September; the EFSB hearing is less than a month away, and 6 of 12 agencies have not provided (the mandatory) Advisory Opinions.  Invenergy has failed to provide information to state and Town agencies; state and Town agencies have been unable to provide Advisory Opinions. Under the law, the EFSB cannot grant a permit.

Enough is enough. It is time for the EFSB to dismiss the case, and deny Invenergy a permit.

Focus Areas

Climate Change


Rhode Island


Stopping Invenergy

2 Responses to “CLF Files Motion to Dismiss Invenergy Case (Again)”

  1. maggie bulmer

    Great and thorough work CLF. Thank you.

    Is someone monitoring the Invenergy location to prevent clearing of the land that Invenergy may begin without permission.

    Preemptive clearing has happened in NY State and in the Dakota Access dispute.

  2. Kevin Cleary


    Thank you for all your work over the last year on this case. The residents of Burrillville should have a party just for you after this power plant application is denied. On behalf of the Burrillville Conservation Commission, I am the Chairman and have submitted numerous testimony to the EFSB on this application in firm opposition to this siting. Not only is this project bad for our little town in the smallest state in the union, it also, if denied, represents one small step towards reducing our reliance on fossil fuels regionally and nationally. It is amazing how over the course of the last year, how much I have educated myself on the natural gas industry and the oblivious blind eye federal regulators have provided to the industry. The extraction of NG in Penn and Ohio has polluted water, ground water, ruined lives, ruined communities and created such a rift in the federal energy policy it is almost sickening. This experience has been a real eye opener for me in the sense of how ignorant I was in my preceding 40 years I was to this industry and its impacts on not just the environment, but our human population and divided nation. Some people have gotten rich and many people have become poor due to this national energy struggle we face.

    I can only hope we, as a small community in this nation, succeed with our opposition to this Invenergy power plant, but I know at the conclusion, if we are successful; only a small time will pass before another application for the same site or possibly somewhere else in Burrilliville is selected for a siting. As a Conservation Commissioner of Burrillville and a strong advocate for health, safety and welfare of the people we are appointed to serve the next stage of this struggle will press on. Changes to our zoning ordinances to perhaps limit facility size, if legal, may be in order. It is my understanding, by way of State Law, zoning cannot outright prohibit energy facilities, but I have read no citations for what sizes of an energy producing facility may be codified by ordinance. I see this as an alternate for many communities that will likely face this challenge regionally as the gas war wages on during this unregulated industrial boom.

    Again, I want to thank you for all the legal representation you have provided on behalf of CLF. Without your legal pursuit, the Town would surely be left with a much different fate to contemplate. If I, or any of the members of the Burrillville Conservation Commission can be of any assistance to you in this matter, please don’t hesitate to contact me at the email provided.

    Thank you,

Leave a Reply

About the CLF Blog

The views and opinions expressed on this blog do not necessarily represent the opinions or positions of Conservation Law Foundation, our boards, or our supporters.