New Bill in Rhode Island General Assembly May Stop Invenergy Power Plant

Jerry Elmer

Note:  This blog was originally published on March 8, 2017, and was updated on March 9, 2017.

A bill, H-5897, just introduced into the Rhode Island General Assembly, clarifies a crucially important point in a 1986 law – and it may be enough to kill Invenergy’s proposal to build a spanking new, 1,000-megawatt fracked gas and diesel oil power plant in rustic Burrillville, Rhode Island. A bit of background will be useful in understanding just how and why this bill is so important.

In 1986, recognizing that it is difficult to get local approvals to site big, new dirty power plants because of so-called “NIMBYism” (NIMBY stands for “Not in My Back Yard), the General Assembly passed the Energy Facility Siting Act. The 1986 law was a two-part bargain. First, the law created a new, single agency, the Energy Facility Siting Board (EFSB), to have sole authority to grant or deny siting permits for new power plants. That is, the law took away that power from a wide range of state and municipal agencies that had had that power up until 1986.

Of course, this was controversial. So the second thing the 1986 law required was that the newly created EFSB must get “Advisory Opinions” from those state and municipal agencies before the EFSB could issue a ruling on a given power plant proposal.

In the case of Invenergy, the EFSB requested these Advisory Opinions from 12 state and municipal agencies. The trouble was that Invenergy illegally refused to provide required information to many of these agencies. In fact, fully six of these 12 agencies told the EFSB – in writing – that they were unable to provide Advisory Opinions because Invenergy had illegally refused to provide the agencies with enough data. As I explained in my recent Op-Ed article in the Providence Journal, Invenergy’s illegal action undermined the entire basis of the Energy Facility Siting Act.

Because of those six missing Advisory Opinions, on September 19, 2016, CLF filed a Motion to Dismiss the Invenergy docket. You can see my earlier blog about CLF’s Motion to Dismiss here, and you can see the text of CLF’s Motion to Dismiss, here.

On February 6, 2017, the EFSB heard oral argument on CLF’s Motion to Dismiss. You can see a part of the oral argument, presented by CLF lawyer Max Green, on YouTube. The EFSB did not rule on CLF’s Motion to Dismiss on February 6; instead, it took the motion “under advisement.” That means that the EFSB would consider the matter and rule at a later time.

On Thursday, February 16, we received its ruling: the EFSB denied our Motion to Dismiss. The EFSB’s unwise decision was, in a hyper-technical sense, not strictly illegal. That is because the language of the Energy Facility Siting Act says that when a permit applicant (like Invenergy) illegally withholds information about its proposed power plant, the EFSB may dismiss the application, but it does not have to dismiss it. (The section of the law that I am referring to is R.I. General Laws Section 42-98-10(d), which you can see here, on the General Assembly website.)

That’s where the newly introduced bill in the General Assembly comes in.

H-5897 is exactly one sentence long. It makes clear what the General Assembly meant all along – that when a company wants to build a new, dirty, polluting power plant but illegally refuses to provide information to agencies charged with providing Advisory Opinions, the EFSB must deny the application.

In other words, the General Assembly does not want to allow illegal, improper end runs around existing laws.

If enacted, this bill would not be “changing the rules in the middle of the game.” Instead, the General Assembly would be reaffirming the basic rules it enacted in 1986: Advisory Opinions are a key, central part of the Energy Facility Siting Act; and when an applicant, like Invenergy, illegally withholds information and makes it impossible for agencies to even create Advisory Opinions, the EFSB cannot properly do its job.

CLF strongly supports passage of H-5897.  CLF is grateful for the leadership of Representatives Keable, Newberry, McKiernan, Regunberg, and O’Brien, in sponsoring the bill.

In fact, unless H-5897 is enacted, the entire 1986 statute becomes a sham. If applicants (like Invenergy) know that they can get away with stonewalling – just refusing to provide required information about their proposals – the entire permitting process becomes meaningless. This was not what the General Assembly had in mind in 1986 when it created the EFSB.

Contact your state legislators and tell them that you support passage of H-5897.

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