STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS ENERGY FACILITY SITING BOARD

Transcription

1 STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS ENERGY FACILITY SITING BOARD In Re: INVENERGY THERMAL DEVELOPMENT ) LLC S APPLICATION TO CONSTRUCT THE ) Docket No. SB CLEAR RIVER ENERGY CENTER IN ) BURRILLVILLE, RHODE ISLAND ) RESPONSE OF INVENERGY THERMAL DEVELOPMENT LLC TO THE CONSERVATION LAW FOUNDATION S MOTION REQUESTING THE RHODE ISLAND ENERGY FACILITY SITING BOARD TAKE ADMINISTRATIVE NOTICE OF A MASSACHUSETTS CO2 REGULATION Now comes Invenergy Thermal Development LLC ( Invenergy ) and hereby responds to the Conservation Law Foundation s ( CLF s ) motion, requesting that the Rhode Island Energy Facility Siting Board ( EFSB or Board ) take administrative notice of a Massachusetts regulation, 310 CMR See CLF Nov. 19, 2018 Motion ( CLF Motion ), at 1. Although Invenergy does not object to the Board taking administrative notice of 310 CMR 7.74 (or any other regulation that the Board may find useful), Invenergy finds it necessary to respond to CLF s misrepresentation of the testimony of Invenergy s witness, Mr. Ryan Hardy, and CLF s continued failure to acknowledge that the law in Massachusetts mandates that consumptionbased accounting be used for measuring carbon emissions. CLF asserts that Mr. Hardy incorrectly testified that Massachusetts [has] chosen consumption-based accounting as it relates to carbon measuring the impact of carbon emissions. See CLF Motion, at 1. To support this assertion, CLF asserts that 310 CMR 7.74 provides that Massachusetts uses production-based accounting methodology; applies only to electricity generators within Massachusetts and sets annual, declining limits only on in-state generators[.] Id. at 3. While Invenergy agrees that 310 CMR 7.74 applies only to electricity generators within Massachusetts and sets annual, declining limits on only in-state generators, as it is a state specific

2 regulation, it strongly disagrees with CLF s misrepresentation that 310 CMR 7.74 confirms that Massachusetts has decided to adopt a production-based accounting methodology to comply with the governing statute. It is clear that CLF is yet again deliberately misstating the law and attempting to mislead this Board. A review of the relevant Massachusetts regulations confirms that Mr. Hardy s testimony was correct, and the CLF s repeated assertions are (again) false. The relevant Massachusetts regulation for purposes of implementing the emission reduction requirements in the Massachusetts law is 310 CMR 7.71, entitled the Reporting of Greenhouse Gas Emissions. Specifically, 310 CMR 7.71 clearly states that [t]he purpose of 310 CMR 7.71 is to implement the reporting and verification requirement for statewide greenhouse gas emissions and to monitor and ensure compliance with the reporting provisions of M.G.L. c. 21N, the Climate Protection and Green Economy Act, St. 2008, c. 298, 6. See 310 CMR M.G.L. c. 21N, the Climate Protection and Green Economy Act, St. 2008, c. 298, 6 is Massachusetts Global Warming Solutions Act ( GWSA ). The GWSA explicitly defines statewide greenhouse gas emissions in Massachusetts as the total annual emissions of greenhouse gases in the commonwealth, including all emissions of greenhouse gases from the generation of electricity delivered to and consumed in the commonwealth, accounting for transmission and distribution line losses, whether the electricity is generated in the commonwealth or imported. See M.G.L. c. 21N, 1 (emphasis added). CLF conveniently fails to even acknowledge this express statement in the relevant governing statute, providing in no uncertain terms that greenhouse gas emissions must necessarily be measured from the generation of electricity delivered and consumed in the commonwealth... whether the electricity is generated in the commonwealth or imported. See id. Moreover, 310 CMR 7.71(9)(c) requires that: 2

3 All retail sellers shall use the following formula to calculate greenhouse gas emissions: GHG = EF * MWh/2000 per short ton Where: GHG = Short tons of greenhouse gases (in carbon dioxide equivalents) associated with electricity sold in MA in a particular calendar year. EF = Emissions factors supplied by the Department each year for biogenic and non-biogenic greenhouse gas emissions (pounds carbon dioxide equivalents per megawatt hour). MWh = Annual electricity consumed by customers in a particular calendar year, increased to account for the portion of electricity lost during transmission and distribution (line losses), as specified in 310 CMR 7.71(9)(d)1. and 2. (megawatt hours). (Emphasis added.) The regulation clearly provides that accounting for electricity sales under the GWSA is based on the amount of emissions consumed within Massachusetts and is not simply based on emissions produced in Massachusetts. This is exactly how one would define consumption-based accounting for emissions. Notably, Invenergy provided this regulation to the Board and all parties in response to the Board s Record Request No. 11, which requested, If you are aware, please provide any State of Massachusetts regulations that use consumption based accounting. See Invenergy Exhibit 191, Response to Board Record Request No. 11. This response was served on all parties on October 9, In contrast, 310 CMR 7.74 is essentially a cap on emissions, with the stated purpose to assist the Commonwealth in achieving the greenhouse gas emissions reduction goals by establishing declining annual aggregate CO2 emissions limits that will reduce CO2 emissions from electricity generating facilities. 310 CMR Invenergy does not dispute that this 1 Indeed, CLF does not even try to claim a mistake, acknowledging that it is aware of both the record request response and 310 CMR See CLF Motion, at 4, n. 2. CLF s effort to fit 310 CMR 7.71 into its misreading of the Massachusetts regulations is unavailing. 3

4 regulation was enacted to help Massachusetts meet its greenhouse gas reduction goals. While this type of emissions cap regulation will further assist the ability of Massachusetts to ensure that there are declining emissions of fossil fuels produced in that state, it does not address the separate question of which methodology is required (and adopted) by Massachusetts for purposes of measuring carbon emissions attributed to Massachusetts energy consumption. To compound the misrepresentation, CLF conflates the concepts of limits on production with production-based accounting. Simply because the two concepts use the word production does not mean (as CLF asserts) that the concepts are the same. In other words, placing limits on production may certainly be helpful to place caps on how much generators can emit; however, such emissions limits certainly do not measure the amount of greenhouse gas emissions delivered to and consumed in Massachusetts, which is the necessary calculation required by the statute, in a way that also recognizes the regional nature of the ISO-NE electric markets and the fact that Massachusetts imports some of its electricity from generation in other states. In summary, while 310 CMR 7.74 requires electric generators to measure and report their CO2 emissions, 310 CMR 7.74 never discusses how Massachusetts should account and report emissions within the electric sector on a consumption basis. As described above, 310 CMR 7.71 is the specific regulation defining how CO2 should be accounted for under the GWSA, and 310 CMR 7.71 explicitly follows the mandate of the statute that a consumption-based approach is the appropriate methodology. Finally, Invenergy again objects to CLF s continued mischaracterization of the facts and law. CLF s failure to adhere to its requisite duty of candor to the tribunal is ongoing and was highlighted in the exchange of CLF s witness, Timmons Roberts, regarding the recent Massachusetts case, Kain v. DEP, 474 Mass. 278 (2016). Specifically, CLF s witness first 4

5 testified about a case he never read, but rather erroneously relied upon certain statements from CLF s attorney and CLF s legal case brief which was not supported by the decision. See EFSB Sept. 20, 2018 Transcript, at 79:7-93:4. 2 CLF now persists in furthering this same subterfuge, this time relying on New England Power Generators Association, Inc. v. Department of Environmental Protection, 480 Mass. 398 (2018). See CLF Motion, at 3-4. Notably, that case was raised by Invenergy during Mr. Roberts cross-examination. See EFSB Sept. 20, 2018 Transcript, at 94:6-95:13. As with Kain, and contrary to CLF s misrepresentation, the court in New England Power further confirmed the overriding requirement established by the GWSA: The act defines Statewide greenhouse gas emissions as the total annual emissions of greenhouse gases in the [C]ommonwealth, including all emissions of greenhouse gases from the generation of electricity delivered to and consumed in the [C]ommonwealth, even if that electricity is produced elsewhere. 480 Mass. at 401. In conclusion, Invenergy does not object to the Board taking administrative notice of 310 CMR However, Invenergy does object to CLF s continued misrepresentation of the testimony of Invenergy s witness, Mr. Ryan Hardy, and CLF s continued efforts to mislead this Board concerning the applicable Massachusetts law and the express statutory mandate in Massachusetts that consumption-based accounting must be used for measuring carbon emissions in Massachusetts. 2 A. My understanding is that these briefs included arguments... about consumption and production-based accounting... I m not a legal expert either, but they become the legal precedent by which the State of Massachusetts cannot use consumption-based accounting.... Q. Have you actually read the Supreme Court decision? A. I have not[.]... Q. Who told you that Kain overturned this statute [GWSA]... A. I was briefed by Jerry Elmer of the Conservation Law Foundation about the Kain decision. See EFSB Sept. 20, 2018 Transcript, at 79:7-93:4. 5

6 Respectfully submitted, INVENERGY THERMAL DEVELOPMENT LLC By Its Attorneys: /s/ Alan M. Shoer Alan M. Shoer, Esq. (#3248) Richard R. Beretta, Jr., Esq. (#4313) Elizabeth M. Noonan, Esq. (#4226) Nicole M. Verdi, Esq. (#9370) ADLER POLLOCK & SHEEHAN, P.C. One Citizens Plaza, 8 th Floor Providence, RI Tel: Fax: Dated: December 3, 2018 CERTIFICATE OF SERVICE I hereby certify that on December 3, 2018, I delivered a true copy of the foregoing document to the Energy Facilities Siting Board via electronic mail to the parties on the attached service list. /s/ Alan M. Shoer v1 6