DEM Passes On Its Obligation to Fully Vet Environmental Impact of Power Plant

By RICK ENSER

Recently, a concerned citizen’s group, Keep Rhode Island Beautiful, released a critique of the Statewide Planning Program’s (SSP) advisory opinion to the Energy Facility Siting Board (EFSB) regarding the Clear River Energy Center proposed for Burrillville. This critique concluded that the SPP opinion was deficient and in some areas biased in favor of the fossil-fuel power plant.

Most notable was the SPP’s decision to ignore seven elements of the State Guide Plan, explaining that “these SGP elements primarily involve environmental and recreational considerations which are to be evaluated by the Department of Environmental Management and others.” Based on this erroneous conclusion, it’s fair to also look at DEM’s advisory opinion to see if that agency did indeed examine the issues neglected by the SPP.

This piece will also try to clarify the responsibilities of both DEM and SPP in regards to “the process” that was established by the Energy Facility Siting Act of 1986, or rather how this process is completely unworkable when trying to analyze the full complement of environmental impacts that will be caused by the largest energy-producing project in Rhode Island history.

Trying to make sense of the environmental impacts of this project stretches the capabilities of the state agencies charged with evaluating those impacts, as is evidenced by the poor quality of the advisory opinions that have been rendered.

It should be noted that the SPP’s choice to ignore several key elements of the State Guide Plan, in expectation that DEM would cover them, is not only wrong administratively, but also evades the intent of the EFS Act, which specifically mandates Statewide Planning Program review of the State Guide Plan. In other words, it’s the SPP’s legal obligation to prepare an advisory opinion that addresses the entire State Guide Plan.

But, since that opinion has already been delivered, the EFSB is left no choice but to dig into the DEM opinion to learn if the Clear River Energy Center is consistent with the issues and policies detailed in the seven missing elements.

For DEM, the most important of the missing elements is “Ocean State Outdoors: Rhode Island’s Comprehensive Outdoor Recreation Plan.” Ocean State Outdoors is Rhode Island’s plan for outdoor recreation, conservation and open space, and provides policies for addressing the many issues involved with these resources. There are three primary goals of Ocean State Outdoors, the most relevant to this review being Goal No. 1: to build a green-space network that preserves and protects natural and cultural resources. Seven policies are identified for achieving this goal that cover the basic resource categories of natural diversity, water, wetlands, coastal areas, forests, agriculture, fish and wildlife, cultural, and scenic.

Policy No. 2 calls for maintaining natural diversity by preserving the integrity of Rhode Island’s ecosystems. At the time of the writing of Ocean State Outdoors, the office identified with advancing this policy was the Natural Heritage Program (NHP) at DEM. It was the responsibility of the NHP to “identify and document important natural areas and features for protection” and “insure that critical natural habitats are identified and appropriately protected through the subdivision and development review process.”

During the 28-year duration of the NHP, literally hundreds of development projects were reviewed by program staff for potential conflicts with rare species and ecosystems using a database of known locations of these biological elements as a basic guide. Since the demise of the NHP in 2007 most of this review capability has been lost; however, on June 1, 2016, the EFSB specifically requested from DEM a review of “the impact of the proposed facility on rare species, including those identified in the Rhode Island Natural Heritage database.”

Rather than fulfilling this request, DEM offered the following excuse: “A lack of Natural Heritage records is typical of private property in Rhode Island regardless of its conservation value and is often a reflection of the property not having been inventoried. Such is the case with the subject parcel. DEM does not enter onto private property without permission, and generally not without invitation.”

The EFSB also requested information from DEM concerning “the impact on fish and wildlife that will be caused by disruption of the habitat.” Although this request would seem to be an easy task for DEM’s Division of Fish and Wildlife, the agency once again evaded the issue by claiming that, “DEM cannot, with such little site-specific information, make conjectures on the full suite of species that would be impacted by the project and the exact nature and extent of those impacts.”

It also concluded that, “with additional survey it is plausible that State-listed species may be found to occur within the project footprint and/or within the extended limits of indirect impacts from the Facility.”

This conclusion is highly disingenuous. Plausibility is not in question, for in fact there are state-listed species found within the project footprint — as reported by Invenergy’s consultants — and the Natural Heritage database does document many rare species populations within the “extended limits of indirect impact.”

Apparently, DEM decided to simply place the blame on the applicant for not providing enough information, rather than doing the job it was requested to do, such as review the Natural Heritage database, or taking the initiative to request access to the property to conduct its own surveys.

Is the Clear River Energy Center consistent or inconsistent with Policy No. 2 of Ocean State Outdoors? There is little information in the DEM opinion that would allow the EFSB to make that determination, although I think most people would agree that building a power plant of any size in the midst of one of the state’s most significant forested ecosystems is inconsistent with this policy.

The degree of inconsistency, however, is in the details that are nowhere to be found in DEM’s advisory opinion.

Another EFSB request to DEM was to determine “whether the Facility will present an unacceptable harm to the environment.” The response to this question was: “DEM is charged with determining whether projects and activities present an acceptable harm to the environment through the various permits, licenses, and reviews authorized under the General Laws and the associated rules and regulations promulgated thereunder.”

According to DEM, the facility is subject to the following permitting actions:  freshwater wetlands, air-pollution control, water-quality certification, and point-source discharge. As the only permit applied for by Invenergy to date is the air-pollution control permit, the conclusion was, “DEM cannot yet render an opinion as to whether the Facility presents an unacceptable harm to the environment.”

Unfortunately, by the time Invenergy applies for the outstanding permits it will have already received a license to proceed, and it’s highly unlikely that a nearly $1 billion project would be halted because a permitted action might result in unacceptable harm to the environment.

Instead, DEM will find ways to “mitigate” any unacceptable harm, at least to the limits that regulations allow. But what about other impacts from the project not subject to a permit or license? Does DEM consider the direct and indirect loss of hundreds of acres of forest and the plants and animals that reside therein to be acceptable? Are the levels of noise and light pollution that will result from the project considered acceptable?

DEM was also asked to consider “the impact of the proposed Facility on state conservation priorities and plans.” At least with this issue the EFSB finally gets an opinion, which reads: “What is also clear from plans such as the Land Acquisition Plan and the RIRPP, as well as from actual land acquisitions, is that Rhode Island has prioritized and invested in this area for wildlife conservation for decades. The location of a Facility of this size and scope immediately adjacent to substantial acreage of State holdings of conservation land is not consistent with the conservation priorities that informed these state conservation plans.”

This response merely points out the obvious, but the conclusion could be drawn for any part of the state where land conservation has been conducted, and begs the question, Why has the state prioritized and invested in this area? A review of the relevant conservation plans would have helped the EFSB understand the particular significance of this area, as shown in the following examples:

Rhode Island Resource Protection Project, Environmental Protection Agency, 1995

Moosup River/Western Blackstone Resource Protection Area. These watersheds comprise the northern section of Rhode Island's “Western Forest,” the largest tract of forest habitat in the state. It’s also a significant non-urbanized area in the Washington, D.C., to Boston corridor, especially considering its interstate connections with Connecticut and Massachusetts.

This area is inhabited by species that require large unfragmented tracts of forest, including neotropical migrant birds — that use these forests for nesting habitat — and wide-ranging mammals such as the bobcat and fisher. The higher elevations and cooler microclimate in this part of the state support natural communities typical of regions north of Rhode Island. The public is able to enjoy the large amounts of open space that are accessible through significant state holdings and the North/South trail currently under development.

Protecting Our Land Resources: A Land Acquisition and Protection Plan, DEM, 1996

Western Forest focus area. Particularly within this focus area, preventing fragmentation is of crucial importance to perpetuating the native biological communities and reducing the level of homogenization of species assemblages brought about by reduction in forest patch size. Within the Western Forest lies the greatest potential to expand on those areas already protected to maximize available habitats and increase buffering.

Northwest Corner Conservation Plan, The Nature Conservancy, 1997

The northwest corner of Rhode Island is notable for its large patches of relatively unfragmented forest. This forest harbors a few high-quality examples of rare natural communities and many species threatened because of their need for sizable patches of undisturbed forest. A number of these forest interior species are at the southern periphery of their range and are not found elsewhere in the state. Rhode Island’s northwest corner is one of the most significant breeding areas for forest interior birds in the state.

Ocean State Outdoors: Rhode Island’s Comprehensive Outdoor Recreation Plan, R.I. Department of Administration, Division of Planning and DEM, 2009

The western forest lands and the extensive state-owned management areas provide year-round opportunities to enjoy a variety of recreational pursuits. The character these areas offer is as near to an unaltered forest environment as can be found in Rhode Island, and for some residents, perhaps the only exposure to “wilderness” they will encounter in their lives. The recreational experiences these forested areas accommodate are special, and care must be taken to ensure that they aren’t diminished by the insidious threats of overuse, resource degradation, pollution and conflicting uses on lands surrounding this public estate.

This last entry was written by the staff of the Statewide Planning Program, the same office that prepared the advisory opinion to the EFSB that found “the proposed Clear River Energy Center is consistent with the State Guide Plan.”

As already noted, Ocean State Outdoors is one of the elements of the State Guide Plan not reviewed by the SPP. The question must be asked, Why would the SPP want to keep this relatively strong sentiment from the EFSB?

The advisory opinions of both DEM and SPP are incomplete, inaccurate and, in some areas, deceiving. The information that is provided is of little use to the EFSB, as it evaluates the environmental impacts of the proposed Clear River Energy Center. The deficiencies and poor quality of these opinions have only two possible explanations: the state employees charged with preparing the opinions are incompetent; or, more likely, this fossil-fuel power plant is simply a done deal that no state agency wants to take responsibility for undermining.

It appears to be a calculated attempt to diminish the ecological significance of western Burrillville to a level in which the impacts of the proposed power plant would be considered “acceptable.”

In July 2016, following Gov. Gina Raimondo’s visit to Burrillville, Steve Ahlquist of RIFuture wrote: “Governor Raimondo urged the people to ‘trust the process,’ but if the people don’t trust the process, it’s not out of some perverse anti-authoritarian impulse, it’s out of first-hand experience with the very process she’s telling them to trust in. The people understand the process intimately, and they know that the process favors Invenergy, not the people.”

That observation was made two months before the advisory opinions of the SPP and DEM were submitted, and apparently neither agency got the message.

Where do we go from here? The EFSB or the governor needs to take responsibility for the failings of their agencies and demand that they do their jobs.  Specifically, the Statewide Planning Program must fulfill its legal obligation under the Energy Facility Siting Act by providing an advisory opinion that addresses the entire State Guide Plan. And, if DEM is unable to provide the data and interpretation needed to fully assess the environmental impacts of the Clear River Energy Center, then other sources outside the agency should be contracted to provide that information.

Rick Enser served as the coordinator of the Rhode Island Natural Heritage Program from 1979 to 2007.