Court Issues Burrillville Power Plant a Setback

By TIM FAULKNER/ecoRI News staff

“This is a huge victory,” Conservation Law Foundation attorney Jerry Elmer wrote in a recent e-mail announcing that a lawsuit against the proposed Burrillville, R.I., fossil-fuel power plant withstood a legal challenge.

The court challenge had been filed by Invenergy Thermal Development LLC, developer of the proposed Clear River Energy Center (CREC). The Chicago-based company was attempting to halt a lawsuit that seeks to nullify the all-important agreement that allows the company to buy water from the town of Johnston.

On June 20, Superior Court Judge Michael Silverstein rejected Invenergy’s request to dismiss the lawsuit. The question of whether an entity can resell the water it gets from the Scituate Reservoir was at the heart of his decision. Silverstein said the case needs to answer “a question of substantial public interest that cries out for a declaratory judgment.” Read his decision here.

Elmer, a senior attorney with CLF, says the ruling not only means that Invenergy stands to lose out on another source of water to cool the nearly 1,000-megawatt natural-gas/diesel power plant, but that the company also is now close to missing its obligation to generate electricity by June 1, 2020. That’s the date the manager of the regional power grid, ISO New England, has agreed to start buying electricity from CREC. Building the $1 billion power plant is expected to take 2.5 years. Therefore, construction must begin no later than January 2017 to meet its electricity obligation.

The problem for Invenergy is that the state Energy Facilities Siting Board has yet to approve the project. A final round of testimony and public hearings is scheduled to begin in October and may run through the end of December. Thus, a decision on the power plant isn't likely until January, and that assumes there are no other delays in the proceedings.

The lawsuit may also force Invenergy to find a new water supply. So far, two water districts in Burrillville and the city of Woonsocket declined to sell water to the power plant. The water issue has been one of the most controversial subjects since the project was announced nearly two years ago. Concerns over supply and environmental and economic impacts prompted the Burrillville water districts to decline selling water to Invenergy.

The company altered the power plant’s cooling system to one that requires less water and began looking to neighboring communities to provide water by tanker truck. On Jan. 10, the Johnston Town Council approved a 20-year, $18 million deal to sell water to Invenergy. 

The decision prompted CLF and the town of Burrillville to sue Invenergy on grounds that the 1915 bylaws created by Providence to sell water from the Scituate Reservoir prohibits the resale of water.

Invenergy sought to dismiss the case on grounds that CLF has no standing in the water agreement. Silverstein agreed that CLF may not have standing, but he is letting the case advance so the issue of water resale can be settled.

“Any way you look at it, today’s ruling is a victory for the environment, and a serious setback for Invenergy,” Elmer wrote.

Invenergy told ecoRI News that it is reviewing the court decision to determine next steps. The company also maintained its commitment to building the power plant and generating electricity on schedule.

"We remain confident that we will deliver power from the Clear River Energy Center to the New England grid in 2020," Invenergy officials wrote in a statement.