Town headed back to court in fight against power plant
Next hearing takes place on Aug. 24
BURRILLVILLE – Attorneys for the Town of Burrillville and the Conservation Law Foundation will be back before Superior Court Judge Michael A. Silverstein on Aug. 24 to argue a motion pertaining to the pre-trial discovery phase of their lawsuits against Chicago-based Invenergy, which is proposing to build the $700 million Clear River Energy Center in Pascoag.
The two lawsuits both seek a declaration from the court that the town of Johnston has no legal right under the 1915 Act to obtain water from Providence for the power plant.
Both the Conservation Law Foundation and the Town of Burrillville are asking Silverstein to issue a summary judgment in the matter.
Pre-trial discovery refers to the often lengthy fact-finding process that takes place before a case is decided on the merits. Jerry Elmer, senior attorney for the CLF, said the CLF’s motion asks the court to rule that, in this case, there is no need for pre-trial discovery and that the court should move immediately to the merits.
“Basically, what we are asking the court to do it to interpret a clear statute,” Elmer says. The statute means just what it says and all the court has to do is look at the words in the law and give those words their ordinary meaning.”
Elmer said Silverstein may or may not agree with that argument.
“The counter-argument that Invenergy and Johnston make is that many towns and many companies sell water in exactly the way that we claim is illegal and therefore we cannot possibly be right about what the law means,” said Elmer, adding Invenergy and Johnston will argue that pre-trial discovery is needed so that the court can be informed about the widespread, long-standing practice of many municipalities and perhaps hundreds of companies.
“There is, of course, an irony here,” Elmer said. “Invenergy has been telling the court that it wants the case to be accelerated, and has been criticizing us for what Invenergy incorrectly calls CLF’s delaying and stalling. However, with this motion, if Invenergy wins, the case will actually be delayed by the necessity of taking discovery before the court can address the underlying merits of the case.”
In the meantime, the state Energy Facility Siting Board (EFSB), which has final say on whether the power plant will be built, has announced the tentative schedule for procedural and evidentiary hearings on Invenergy’s application.
There will be a total of 15 hearings beginning Oct. 17 and ending on Dec. 18. Procedural hearings and motions will be held over a period of three consecutive days Oct. 17-18, while evidentiary hearings will be held Oct. 31; Nov. 1, 2, 10, 20, 29 and 30; and Dec. 4,7, 8, 12 and 18.
All hearings are scheduled to be held in the Rhode Island Public Utilities Commission hearing room, 89 Jefferson Boulevard, Warwick..
Meanwhile, the EFSB is giving the town until Aug. 13 to prepare and submit its supplemental advisory opinion on Invenergy’s new water supply plan for the power plant.
In March, the EFSB voted to ask for supplemental advisory opinions from the Burrillville building inspector, the Rhode Island Department of Health, Department of Environmental Management, Department of Transportation and Statewide 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 on Aug. 13.
The EFSB, which will have final say on whether the plant is built, has discussed conducting another public hearing in Burrillville after the supplemental advisories are available for review and before the evidentiary hearings begin Oct. 31.
The board’s final decision is due within 120 days of the beginning of the final hearings or 60 days after the end of the hearings, whichever is shorter.
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