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Town of Barnstable v. O'Connor

United States Court of Appeals, First Circuit

May 18, 2015

TOWN OF BARNSTABLE, Plaintiff, Appellant, HYANNIS MARINA, INC.; MARJON PRINT AND FRAME SHOP LTD.; THE KELLER COMPANY, INC.; ALLIANCE TO PROTECT NANTUCKET SOUND; SANDRA P. TAYLOR; JAMIE REGAN, Plaintiffs,
v.
ANGELA M. O'CONNOR, in her official capacity as Chair of the Massachusetts Department of Public Utilities; JOLETTE A. WESTBROOK, in her official capacity as Commissioner of the Massachusetts Department of Public Utilities; ROBERT HAYDEN, in his official capacity as Commissioner of the Massachusetts Department of Public Utilities; JUDITH JUDSON, in her official capacity as Commissioner of the Massachusetts Department of Energy Resources; CAPE WIND ASSOCIATES, LLC; NSTAR ELECTRIC COMPANY, Defendants, Appellees. HYANNIS MARINA, INC.; JAMIE REGAN; ALLIANCE TO PROTECT NANTUCKET SOUND, Plaintiffs, Appellants, MARJON PRINT AND FRAME SHOP LTD.; THE KELLER COMPANY, INC.; SANDRA P. TAYLOR; TOWN OF BARNSTABLE, Plaintiffs,
v.
ANGELA M. O'CONNOR, in her official capacity as Chair of the Massachusetts Department of Public Utilities; JOLETTE A. WESTBROOK, in her official capacity as Commissioner of the Massachusetts Department of Public Utilities; ROBERT HAYDEN, in his official capacity as Commissioner of the Massachusetts Department of Public Utilities; JUDITH JUDSON, in her official capacity as Commissioner of the Massachusetts Department of Energy Resources; CAPE WIND ASSOCIATES, LLC; NSTAR ELECTRIC COMPANY, Defendants, Appellees. HYANNIS MARINA, INC.; JAMIE REGAN; ALLIANCE TO PROTECT NANTUCKET SOUND, Plaintiffs, Appellants, MARJON PRINT AND FRAME SHOP LTD.; THE KELLER COMPANY, INC.; SANDRA P. TAYLOR; TOWN OF BARNSTABLE, Plaintiffs,
v.
ANGELA M. O'CONNOR, in her official capacity as Chair of the Massachusetts Department of Public Utilities; JOLETTE A. WESTBROOK, in her official capacity as Commissioner of the Massachusetts Department of Public Utilities; ROBERT HAYDEN, in his official capacity as Commissioner of the Massachusetts Department of Public Utilities; JUDITH JUDSON, in her official capacity as Commissioner of the Massachusetts Department of Energy Resources; CAPE WIND ASSOCIATES, LLC; NSTAR ELECTRIC COMPANY, Defendants, Appellees

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[Copyrighted Material Omitted]

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APPEALS fro THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

Ira H. Zaleznik, Joshua M. D. Segal, and Lawson & Weitzen LLP, on brief for appellant Town of Barnstable.

Matthew E. Price, with whom Adam G. Unikowsky, Jenner & Block LLP, Robert A. Bianchi, and Robert A. Bianchi & Associates, were on brief, for appellants Hyannis Marina, Inc., Jamie Regan, and Alliance to Protect Nantucket Sound.

Laurence H. Tribe, Jonathan S. Massey, and Massey & Gail LLP, on brief for appellant Alliance to Protect Nantucket Sound.

Timothy J. Casey, Assistant Attorney General, with whom Martha Coakley, Attorney General of Massachusetts, was on brief, for appellees Angela M. O'Connor, Jolette A. Westbrook, Robert Hayden, and Judith Judson.

David S. Rosenzweig, with whom Erika J. Hafner, Michael J. Koehler, Keegan Werlin LLP, Geraldine E. Edens, Christopher Marraro, and Baker & Hostetler LLP, were on brief, for appellee Cape Wind Associates, LLC.

John D. Donovan, Jr., Matthew L. McGinnis, and Ropes & Gray LLP, on brief for appellee NSTAR Electric Company.

Before Lynch, Chief Judge, Stahl and Kayatta, Circuit Judges.

OPINION

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KAYATTA, Circuit Judge.

This appeal arises from the latest in a series of lawsuits by opponents of a proposed off-shore wind power generation facility in Nantucket Sound. Plaintiffs--who include the Town of Barnstable, a non-profit advocacy group named Alliance to Protect Nantucket Sound, and businesses and individuals residing near the proposed facility[1]--sought an injunction and a declaratory judgment in federal district court against officials of the Massachusetts Department of Public Utilities (" DPU" ) and the Massachusetts Department of Energy Resources (" DOER" ) (together, the " state defendants" ),[2] and two private parties,

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Cape Wind Associates, LLC and NSTAR Electric Company,[3] whose contract to buy wind power DPU approved. The district court granted defendants' motions to dismiss after determining that the Eleventh Amendment precluded the assertion of federal court jurisdiction. For the reasons explained below, we disagree that the Eleventh Amendment bars the assertion of federal court jurisdiction over plaintiffs' claims, and we remand for resolution of the case's status and the possible need to resolve a litany of other issues concerning the viability of the complaint.

I. Background[4]

Cape Wind has pursued development of offshore wind power in Nantucket Sound since at least 2001. See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep't of the Army, 288 F.Supp.2d 64, 67 (D. Mass. 2003). The company has faced a series of challenges against its attempts to acquire the necessary permits and approvals for a planned 130-turbine, twenty-five square mile facility in the Sound. See Town of Barnstable v. Berwick, 17 F.Supp.3d 113, 116-20 (D. Mass. 2014).

Cape Wind's efforts at convincing electric utilities (also known as " electric distribution companies" ) to purchase its wind energy received a boost in 2008, when the Massachusetts legislature enacted the Green Communities Act (the " GCA" ). 2008 Mass. Acts ch. 169 (" An Act Relative to Green Communities" ). Section 83 of the GCA requires each Massachusetts electric utility to " solicit proposals from renewable energy developers and . . . enter into cost-effective long-term contracts" with such developers for up to three percent of the total energy demand in the utility's service territory. Id. at § 83. Section 83 further provides that " [t]he timetable and method for solicitation and execution of such contracts shall be proposed by the distribution company in consultation with [DOER] and shall be subject to review and approval by [DPU]." Id.

As originally enacted, Section 83 permitted Massachusetts utilities to fulfill their renewable energy obligation only by entering into contracts for power generated " within the jurisdictional boundaries of the commonwealth, including state waters, or in adjacent federal waters." Id. In 2009, while that geographic limitation was still in place, Cape Wind entered into no-bid negotiations with National Grid--a competitor of NSTAR operating in Massachusetts--for National Grid's purchase of fifty percent of the wind energy generated by Cape Wind's proposed facility. Cape Wind and National Grid later executed a contract, which they called a Power Purchase Agreement (" PPA" ). According to plaintiffs' complaint, " [t]he National Grid contract prices were significantly above the market price for electricity and above the price of other renewable energy generation."

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In 2010, a Canadian energy generator named TransCanada Power Marketing sued DPU, alleging that Section 83's geographic limitation unconstitutionally discriminated against interstate commerce in violation of the dormant Commerce Clause. DPU settled the suit by suspending the geographic limitatio[5] and directing utilities such as NSTAR to reopen bidding opportunities to out-of-state generators. DPU did not, however, require National Grid to back out of its agreement with Cape Wind. DPU instead approved the Cape Wind-National Grid PPA in DPU Order 10-54.[6]See DPU Order 10-54 (Nov. 22, 2010) (final order).

NSTAR, for its part, subsequently received bids from forty-four renewable energy developers and entered contracts with three land-based wind generators, one located in-state and two out-of-state. According to the complaint, NSTAR contracted to buy energy with those three companies at half the initial price Cape Wind was charging National Grid pursuant to the Cape Wind-National Grid PPA.

Later in 2010, NSTAR filed an application with DPU requesting that it approve NSTAR's proposed merger with Northeast Utilities, a Connecticut-based electric utility distribution company.[7] At the time, DPU applied a " no net harm" standard in assessing merger applications, meaning that mergers would be approved so long as the public interest " would be at least as well served by approval of a proposal as by its denial." See D.P.U. Order 10-170 (Mar. 10, 2011) (interlocutory order on standard of review). Cape Wind and DOER, among others, intervened in the DPU proceeding. DOER proposed a more stringent " substantial net benefit" standard that would take into account " the advancement of clean energy goals established by the [GCA] and the Global Warming Solutions Act ['GWSA']." DOER also asked DPU to require NSTAR to purchase off-shore wind energy as a condition for approving the merger with Northeast Utilities.

After taking the parties' and intervenors' positions under advisement, DPU chose to adopt a " net ...


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