Problems for Invenergy Continue to Mount

Jerry Elmer

I have written before about Invenergy’s proposal to build a new 1,000 megawatt fossil fuel power plant in rural Burrillville, Rhode Island; and I have recently written about mounting problems that Invenergy faces.

Now Invenergy may be facing new, additional problems.

On August 31, 2016, the Town of Burrillville Planning Board filed its Advisory Opinion in the Energy Facility Siting Board (EFSB) in the Invenergy case. The Planning Board concluded unanimously that the Invenergy plant would be inconsistent both with the Town’s Comprehensive Plan and the state’s Comprehensive Planning and Land Use Regulation Act.

On page 10 of the document, the Planning Board says:  “Each Board member expressed his [sic] opinion on this Application, concluding that the [Invenergy Plant] would not be in accordance with either our [Burrillville] Comprehensive Plan” or the state Comprehensive Planning statute. The document goes on to say that the Planning Board “place[s] . . . weight on numerous Comprehensive Plan Goals and Policies that CREC would not be in compliance with, such as natural and cultural resources, landscapes, wildlife and biodiversity, local air quality, groundwater quantity and quality, excessive traffic impacts, and noise.” Then the Planning Board spends four pages listing the many specific sections of the Town’s Comprehensive Plan that Invenergy would violate.

On page 14 of the document, the Planning Board says: “The planning Board is unanimously of the opinion that [Invenergy] would not  [emphasis in original] be consistent with the following sections of the Rhode Island Comprehensive Planning and Land Use Regulation Act”  and spends several pages outlining which sections.

Unfortunately, the Advisory Opinion may be somewhat weakened by the fact that, starting at page 20, the Planning Board lists 18 “Conditions of Approval” that it asks the EFSB to make if the plant is permitted. Nevertheless, some of the conditions listed would be difficult or impossible for Invenergy to follow if they were imposed by the EFSB. I refer here to Conditions #4 and #11 (pertaining to water use), Condition #16 (which, if imposed, would violate some of the market rules imposed by New England’s grid operator, ISO-NE, and would therefore potentially cost Invenergy millions [or tens of millions] of dollars), and Condition # 17 (which would require Invenergy to undo a previous court order, which would probably be impossible!). In addition, to its credit, the Planning Board says, on page 25: “Of course, as set forth in detail herein, the Planning Board believes the CREC is inconsistent with the [Town’s] Comprehensive Plan, and we only recommend these conditions as safeguards in the event the EFSB approves the CREC.”

It is also important to bear in mind that the August 31 filing by the Burrillville Planning Board comes in the context of both the Pascoag Utility District and the neighboring Harrisville Water District having recently denied Invenergy use of their water for the facility. (The Burrillville Planning Board document filed on August 31 makes note of this important fact, and reminds the EFSB that, as of now, Invenergy has not been able to explain where or how it will get its water.)

The Planning Board also says [page 9, paragraph 2]: “It is also our opinion that many of the data responses we received from Invenergy were incomplete and at times evasive.” This sentence won’t jump out at non-lawyers, and the sentence has no binding legal significance.  Nevertheless, it may be important. If the EFSB gets the impression that Invenergy has not been fully forthcoming with the Town and/or with other stakeholders, then it may be less favorably inclined toward Invenergy.

I want to be careful not to overstate the potential significance of  Burrillville’s August 31 filing with the EFSB. The reason that the General Assembly created the EFSB in the first place was precisely to take these energy siting decisions away from local Town Councils and planning boards, and put those decisions before a body that may be less susceptible to local citizen pressure. Nevertheless, I believe that Burrillville’s August 31 filing is potentially significant. We already had both of the two geographically proximate water districts denying Invenergy any water; and we now have the Town Planning Board unanimously saying that Invenergy’s proposal is inconsistent with both the Town’s Comprehensive Plan and state law.

And, of course, at the upcoming hearing at the EFSB in the autumn, CLF’s expert witness, Dr. Timmons Roberts, will testify that Invenergy would make it impossible for the state to meet its short-, medium-, and long-term carbon emission reduction goals. Step by step, opposition to Invenergy will continue to build.

Again, I do not want to overstate the significance of Burrillville’s August 31 filing, but things may be starting to look up a bit in the ongoing battle against Invenergy.

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