Brockton Power sues Massachusetts locality over plant permit

Generation developer Brockton Power LLC has filed suit against the City of Brockton, Mass., including the mayor, City Council and Planning Board, alleging that local officials have systematically deprived the developers of using its land for a new natural gas plant.

In a suit filed June 12 in U.S. District Court in Boston, the power plant developer said it “reluctantly” brings suit only after local officials “conspired” against the plant developers and denied them due process.

An environmental report on the plant’s website indicates the proposed project consists of construction and operation of a 300-MW gas turbine combined cycle (GTCC) power plant which will be equipped with duct firing and evaporative cooling of air intake to the turbine to increase capacity to 350 MW.

Brockton Power is affiliated with Advanced Power Services. Brockton Power is seeking $68m in damages and permits for the power plant and transmission switchyard.

Brockton said it has been pursuing permits for the gas-fueled power plant for five years in an industrial area zoned for such use.

The Massachusetts Energy Facilities Siting Board has granted its formal approval for the project, subject to compliance with local Brockton zoning and permitting procedures that are “properly applied – meaning lawfully, in good faith,” according to the suit. The development company said state and federal regulators have concluded the plant is safe and clean and passes regulatory muster.

The Massachusetts Department of Environmental Protection, after years of review, has also issued an air permit. The 35-page complaint alleges that various local officials, however, “motivated by their personal and political animus” have abused and manipulated local land use powers “in their attempt to fatally delay and ultimately kill the Project.”

Brockton Power argues that the city actually supported and encouraged a virtually identical power plant on the exact same site years before. The city had gone so far as to authorize, in early 2000, the proposed project to buy two million gallons of treated effluent daily from the city’s wastewater treatment plant under a long-term contract.

“Efforts to complete the Landowner’s prior proposed project were suspended following the Enron bankruptcy and subsequent economic downturn, which made the Project’s economics and financing less feasible,” Brockton Power said in the complaint.

Then in late 2006, Brockton Power was formed to develop, construct and operate a power plant at the generator site. In addition to acquiring an option to buy the site, Brockton Power also signed an option to purchase a nearby parcel that would enable the proposed plant to connect with a National Grid transmission line.

But certain city officials, working in combination with opposition groups,  embarked on a campaign of knowingly false disparagement of the project “as dirty, dangerous, and likely to spread Legionnaire’s Disease, among other claims that have been rejected as false by the responsible state officials,” Brockton Power said.

In January 2009, City Council moved to rezone the property to remove power plants as a permitted use.  “As if rezoning the land wasn’t enough, the City Council went even further when it undertook a subsequent ex post facto attempt to kill the Project in June 2010 by voting to ban “sound attenuation walls” knowing that such walls were incorporated into the design of the Project that was being reviewed by the state Siting Board,” Brockton Power said.

Then in February 2010, the City Council passed a resolution that called for an immediate halt on all deliberations concerning the siting of a power plant in Brockton.

Brockton Power also alleges the city took other procedural maneuvers, including trying to deny the proposed plant access to both drinking water and cooling water.

“This case is important because if cities and towns in Massachusetts are permitted, under color of law, to conduct themselves as lawlessly as Brockton has conducted itself toward a clean and safe energy project on private industrial property specifically zoned for such use for over forty years, then no such project is safe for development in the Commonwealth, and the state’s energy infrastructure is, as a consequence, impermissibly limited and unjustifiably compromised,” according to the complaint.

In a May 10 statement, Brockton’s mayor, Linda Balzotti, said she remains opposed to the power plant and said that the south side of the city is already home to a waste water treatment plant and a landfill.

 

The case is Brockton Power LLC and Brockton Power Co. LLC versus City of Brockton, Mass., and others; 1:12-cv-11047-JLT.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.