New lawsuit filed against plant
BURRILLVILLE – Citing a little-known state law on the books for more than a century, the Conservation Law Foundation filed suit against the town of Johnston Tuesday in a bid to unravel the town’s deal to sell water to the Clear River Energy Center and kill the proposed power plant “for good.”
Johnston, which gets all of its water from Providence, is prohibited from using it for anything but “domestic, fire and other ordinary municipal water supply purposes” under a statute passed by state lawmakers in 1915, papers filed in Superior Court say.
Furthermore, CLF says Providence does not have a contract to sell water to Johnston, as Mayor Joseph Polisena has repeatedly insisted.
“On this, Johnston Mayor Joe Polisena is just wrong,” CLF lawyer Jerry Elmer said in a statement. “There used to be a contract between Providence and Johnston, but that contract expired years ago.”
CLF is asking a Superior Court judge to issue a summary judgment in the suit, a sort of abbreviated decision-making process that’s based largely on an interpretation of the law.
On Jan. 6, the Johnston Town Council approved a 20-year, $18 million deal to sell water to Chicago-based Invenergy Thermal Development. At a cost of some $700 million, the company proposes to build the Clear River Energy Center, a 900-megawatt gas- and diesel-powered cogeneration plant on a rural tract of land off Wallum Lake Road, in the town’s Pascoag section.
Elmer said officials in Providence were opposed to the deal, but they recently voted to endorse it because they erroneously believed they had no choice in the matter.
In fact, CLF asserts, “Providence has no legal obligation to sell water to Johnston for Invenergy.”
Under CLF’s interpretation, Public Law 2015, Chapter 1278 limits Johnston’s use of Providence water for such activities as fire suppression, residential drinking purposes and other household uses, such as dishwashing and flushing toilets.
“Having Johnston resell the water to a Chicago corporation for use in a power plant in Burrillville is clearly not an ordinary Johnston municipal purpose,” Elmer said. “The plain meaning of the law is that Providence has no legal obligation to sell water to Johnston for Johnston to sell to Invenergy.
Once the court rules in the case, Providence would be free to refuse to sell water to Johnston, according to Elmer.
“And that may kill the plant,” he said.
Accessibility to a reliable water source has been a longstanding Achilles’ heel for Invenergy, whose application to build the Clear River Energy Center has been pending before the state Energy Facility Siting Board since October 2015. After the company twice failed to obtain water from two local sources – the Pascoag Utility and the Harrisville Water districts – the EFSB suspended consideration of the application for several months to give the company time to identity a source of water to cool the plant’s turbines.
In preliminary papers to the EFSB, the company initially proposed getting water from the city of Woonsocket via a 14-mile pipeline, but in an eleventh-hour move the company scrapped the idea. While Invenergy appeared to be still negotiating exclusively with Woonsocket, the company said it would limit its need for cooling water by recycling more on site and using trucks as the sole mechanism for delivering supplies to the plant.
On the same night that members of the Woonsocket City Council rejected the deal, citing strong opposition to the plant, their peers in Johnston approved it during a meeting that received little advance notice.
But the company’s trucking-intensive water supply strategy is still having repercussions before the EFSB that some observers believe could throw a wrench into Invenergy’s plans for Clear River. Now the board is grappling with the question of who should be allowed standing to present additional advisory opinions to the board regarding the proposed overhaul of the coolant water supply system.
During a hearing on Monday, the EFSB tentatively decided to request advisory opinions from the state Department of Health, the Department of Environmental Management, Department of Transportation, Office of Statewide Planning, Providence Water Supply Board and the town of Johnston.
It could take months for the EFSB to process all of the information, threatening to upend the promises Invenergy has made to supply a certain amount of electricity to the regional power grid known as ISO New England.
Invenergy may be able to extend its agreements with ISO New England until 2020, but whether it can get a permit and complete construction of the plant by then is still uncertain.