Proposed Fossil-Fuel Facility Running Out of Options

Invenergy's legal team, including its chief legal officer Michael Blazer, right, could have its project suspended by Rhode Island's siting board. (Tim Faulkner/ecoRI News)

Invenergy's legal team, including its chief legal officer Michael Blazer, right, could have its project suspended by Rhode Island's siting board. (Tim Faulkner/ecoRI News)

Video and text by TIM FAULKNER/ecoRI News staff

WARWICK, R.I. — The proposed Burrillville fossil-fuel power plant is on life support, according to one of the main lawyers fighting the project.

Jerry Elmer, senior attorney for the Conservation Law Foundation, made the pronouncement after the three-member Energy Facilities Siting Board (EFSB) agreed to hold a hearing on whether to suspend the application for the Clear River Energy Center. At issue is the developer’s fight over paying to connect the $1 billion facility to the regional power grid.

Invenergy Thermal Development LLC is suing National Grid and ISO New England, the operator of the regional power grid, because the Chicago-based company believes the $164 million interconnection cost should be paid by ratepayers.

The problem is that the EFSB stated at its Dec. 12 hearing that foisting that expense on ratepayers would alter one of the main provisions of the application: cost. Passing along a multimillion-dollar bill to ratepayers is a significant change to the application that warrants suspension or dismissal, according to project opponents.

Elmer said Invenergy has no good options. If it wins the lawsuit and tries to pass the cost to ratepayers, the EFSB will halt the natural-gas/diesel project because of the change in the cost paradigm. If Invenergy loses the lawsuit, then it will be asked to pay the $164 million interconnection costs, which it says it will not do.

“So win or lose, the case is over,” Elmer said.

Invenergy reacted to Elmer’s declaration by saying it doesn't respond to speculation.

But if the basic elements of Elmer’s claim are true, then it’s hard to see how Invenergy isn't in a serious bind. EFSB member Janet Coit noted that the interconnection agreement and the power-plant application are two separate cases before the EFSB. She said the two are part of the same project and as such their impacts must be considered together. The EFSB must weigh the financial impacts and Coit noted that appears to be changing from the original application.

“It’s been stated over and over by (Invenergy) that this is a privately financed project without seeking any ratepayer funding,” Coit said. “I think we need to consider whether ... we should suspend these hearings to find out the answer to that. It really speaks to a fundamental part of the applications.”

If Invenergy were to prevail with its lawsuit, EFSB chairwoman Margaret Curran said, “This proposed (power plant) could not claim that it wouldn’t place any costs on ratepayers because that would mean the ratepayers of New England would be responsible for those aspects of the transmission costs.”

EFSB member Parag Agrawal noted that the interconnection issue and other outstanding matters should be resolved before the final phase of hearings begin in April. According to Elmer, it may take up to a year before Invenergy’s lawsuit, which is before the Federal Energy Regulatory Commission (FERC), is complete.

Invenergy may not have that long to wait, as it has already suffered costly construction delays and had setbacks selling its power to the electric grid.

The EFSB said it also wants to know at the scheduled Dec. 18 show-cause hearing more about the water agreement signed with the Narragansett Indian Tribe and who is authorized to sign the agreement with Invenergy.

At the Dec. 12 hearing, the EFSB denied a request by the town of Charlestown for funds to pay for its engineering and environmental costs related to assessing the water deal. As a backup water source, the EFSB said the town didn't qualify for funds as outlined by regulations.

The town of Burrillville was also denied in its request for an independent environmental review of the proposed power plant. The EFSB said the finally stage of hearings with expert witnesses will answer any environmental questions.