Judge will hear arguments on power plant suit

BURRILLVILLE – Superior Court Judge Michael A. Silverstein on May 31 will hear oral arguments on Invenergy’s motion to dismiss two lawsuits filed last month by the Town of Burrillville and the Conservation Law Foundation.

The two lawsuits both seek the same thing: A declaration that the town of Johnston has no legal right under the 1915 Act to obtain water from Providence for Invenergy’s proposed natural gas-fired power plant in Pascoag.

“Invenergy’s main argument about why the case should be dismissed is that the Conservation Law Foundation lacks standing to bring the lawsuit,” said Jerry Elmer, senior attorney for the CLF. “Lack of standing’ is an argument that is often made against CLF and all environmental organizations in trying to get their lawsuits dismissed. The argument does work sometimes, but often does not work.”

On Jan. 11, the Johnston City Council approved a long-term agreement to sell water to the company, but the town argues in its lawsuit filed in Superior Court on Monday that selling water to Invenergy for use at a power plant is not a use anticipated by the 1915 Act that established the Providence Water Supply.

Both the Conservation Law Foundation and the Town of Burrillville are asking a Superior Court judge to issue a summary judgment in the matter.

According to the lawsuits, the current the version of the 1915 Act provides that certain cities and towns, including the Town of Johnston, ‘shall have the right to take and receive water … for use for domestic, fire and other ordinary municipal water supply purposes.” Johnston’s selling water to Invenergy for Invenergy to use at a power plant located in Burrillville is not a use by Johnston “for domestic, fire, or ordinary municipal water supply purposes,” the complaint says. “Johnston therefore has no legal right to purchase water from Providence for resale to Invenergy.”

“If successful these lawsuits would make it impossible for the proposed Invenergy fossil-fuel power plant to be built by cutting off Invenergy’s supply of water to cool the plant,” Elmer said. “Specifically, CLF is asking the Court to rule that the existing contract between the Town of Johnston and Invenergy is illegal under Rhode Island law.”

Last month, the EFSB voted to ask for five supplemental advisory opinions on Invenergy’s new water supply plan. In addition to the Burrillville building inspector, the Rhode Island Department of Health, Department of Environmental Management, Department of Transportation and Statewide Planning will have four months to provide supplemental advisory opinions to address the impacts of the proposed new water plan and gaps identified in the original advisory opinions.

According to the EFSB’s rules and regulations, agencies asked to submit advisory opinions on an application are allowed up to six months to do so, but the board has decided to ask for an interim status report on the advisory opinions with final reports due within four months.

Several weeks ago, the EFSB unanimously voted to deny separate motions by Burrillville and the Conservation Law Foundation to dismiss Invenergy’s application. The town’s original motion to dismiss was filed in September on the grounds that Invenergy’s application is incomplete and did not include information regarding all required support facilities, including water resources. The EFSB, which will have final say on whether the plant is built, voted a month later in October to suspend the application and ordered the company to report back by Jan. 11 with a new plan to secure water for the $700 million Clear River Energy Center after two water suppliers in Burrillville rejected proposals to sell water.