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.

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