Judge rules lawsuits against plant can proceed

BURRILLVILLE – Superior Court Judge Michael Silverstein this week denied Invenergy’s motion to dismiss two lawsuits filed in April 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 had argued for dismissal of the suits, saying Burrillville and the Conservation Law Foundation lacked standing to bring the lawsuit, which is a prerequisite to seeking a declaratory judgment.

Invenergy also argued that the town and CLF did not exhaust their administrative remedies with the state Energy Facility Siting Board (EFSB), which they say has primary jurisdiction over all issues of licensing and permitting major energy facilities - including Invenergy’s proposed $700 million Clear River Energy Center in Pascoag.

In his decision, Judge Silverstein rejected CLF’s two main arguments in favor of its standing, but accepted CLF’s argument that the court should overlook the lack of standing to proceed to the merits of the case anyway because of the strong public interest in having the legality of the water contract decided.

“Plaintiffs (CLF and Burrillville) have brought to this court a question of substantial public interest that cries out for a declaratory judgment,” Silverstein said in his decision.

“Invenergy was trying to get the entire case dismissed, arguing that CLF did not have ‘standing’ to bring the case,” said Jerry Elmer, senior attorney for the CLF. “Now that Judge

Silverstein has denied Invenergy’s motion to dismiss, the underlying lawsuit will proceed to the actual merits. And, on the merits, CLF believes it has a strong argument.”

If CLF does prevail on the merits, he said, Invenergy would be forced to find yet another water source, which may not be possible.

Elmer said the Superior Court ruling means at the very least that the Invenergy case before the EFSB Board will be delayed again.

“This was a victory for the environment and for the opponents of Invenergy,” he said.

On Jan. 11, the Johnston City Council approved a long-term agreement to sell water to the company, but the town and CLF argue in their lawsuits 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.”

The EFSB has asked 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.

last year, the EFSB denied 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, 2017 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.

On Jan. 11, the last day of the suspension period and the day after the Johnston City Council approved a long-term agreement to sell water to the company, Invenergy filed its revised water supply plan.

The town continues to maintain

its position that Invenergy’s new water plan in partnership with the town of Johnston changes the processing methods of the power plant and includes process that were not known to the town, the EFSB, or the other agencies that provided advisory opinions to the EFSB back in September of 2016.

Meanwhile, the Burrillville Town Council is continuing to engage experts and prepare to fully present its opposition to the plant at a series of hearings before the EFSB. Already the costs have far exceeded what the town can afford and what is provided under the EFSB act.

“We knew that Invenergy with its deep pockets was going to unleash a political and public propaganda campaign designed to win EFSB approval,” said Town Council President John Pacheco. “In fact, we are now seeing Invenergy’s latest publicity campaign that funds the launch of Rhode Islanders for Affordable Energy – a newly named group to support the plant. We urge people to carefully look at the statements and advertisements from the group. Keep in mind these are Invenergy’s alternative facts and ongoing propaganda just under a different name.”

The Town of Burrillville has set up a dedicated fund to fight the power plant ironically utilizing Invenergy’s own money. The money is provided under the tax agreement negotiated by the town with Invenergy.

“We knew we would never be able to battle this power plant without additional funding and we also knew despite our best efforts, the power plant could still be forced on us,” said Pacheco. “The tax agreement was to protect the interests of the Town, and since it provides for upfront money with no strings attached, we are using that money to oppose the plant.”

So far, the town has received $1.175 million as a result of the agreement - and that money is in a dedicated fund to battle the plant. Keeping in mind Invenergy’s almost limitless resources, town officials are still concerned it may not have enough to fund what many see as an uphill fight.

Efforts are underway in the General Assembly to pass legislation that would change the Energy Facility Siting Act. At the request of the Burrillville Town Council, House Bill H6051 and Senate Bill S0769A were introduced to provide a more measured approach to decisions on energy plant locations. The proposed legislation would increase the membership of the EFSB, adding local representation and incorporating meaningful local participation of host communities in the hearing and decision making process of the board.

At present, the EFSB final hearing on the power plant is scheduled to occur on 18 non-consecutive days between October 4 and Dec. 25.