Brockton Power faced more than “run of the mill” opposition

By Wayne Barber, Chief News Analyst, GenerationHub

A group of Brockton, Mass., city officials, including a current and former mayor, have suffered a legal setback in litigation brought by a firm seeking to develop a new 350-MW natural gas power plant.

A tort and conspiracy suit was brought in federal court in Massachusetts last June by Brockton Power, which is affiliated with Advanced Power and Siemens (NYSE: SI). The plaintiffs won a key early round in the case recently when a federal court declined to dismiss the suit at this stage or grant the officials government immunity.

Federal magistrate Judge Leo Sorokin on May 30 denied city motions seeking to dismiss the seven individuals as defendants in the lawsuit, which would have left the entities of the city, including Brockton City Council and the city’s Planning Board.

This does not represent a final victory for Brockton Power, run by Dennis and Leo Barry, and their attempt to develop a power plant in Brockton, Mass. It does, however, allow the company to continue to pursue its multi-million-dollar conspiracy suit against local officials.

The city of Brockton had filed its response to Civil Action No. 12-11047-JLT in July 2012. The city denied the Brockton Power allegations including any claims of civil conspiracy. It also claims that the plant developers had failed to exhaust their administrative or judicial remedies.

The magistrate judge ruled that the individuals in question are not entitled to “absolute immunity” for government representatives because they are accused of stepping outside their official administrative roles to kill the power plant.

The defendants can renew their bids for “qualified immunity” later in the proceedings as more facts are placed into the record, the magistrate judge said.

“The plaintiffs have done enough, at this stage in the proceedings, to distinguish their allegations from the sort of “run of the mill” land-use claims often brought by disappointed developers and rejected by federal courts in this jurisdiction,” according to the court ruling.

The plaintiffs expect the project to prove beneficial to the region, not only economically, but also because it would “meet the region’s growing energy needs” and help prevent “devastating interruptions and blackouts that have increasingly occurred in the New England power grid,” according to the 44-page filing on May 30.

Since at least 2007, the project has been subjected to intense scrutiny by, and has won support from, state-level agencies including the Massachusetts Energy Facilities Siting Board and the Department of Environmental Protection. DEP has issued an air permit.

The plaintiffs maintain that the project has been undermined by various city officials who “orchestrated a scheme” to thwart the project.

Among other things, plaintiffs say the city made improper attempts to change applicable zoning rules, refused to process necessary plans and applications, prevented the project from access to drinking and cooling water and engaged in persistent litigation and manipulation.

According to the plaintiffs, such measures are extraordinary, and are not merely reflective of good-faith disagreement among the parties regarding the interpretation and application of relevant ordinances and procedures.

At one point, city officials pressed city employees to cook up a pretext to take the plaintiffs land by eminent domain. One city official named in the suit set up a non-profit group specifically to oppose the plant.

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