Barnstable, Town of et al v. Berwick et al
Judge Richard G. Stearns: ORDER entered granting 27 Motion to Dismiss for Lack of Jurisdiction; granting 27 Motion to Dismiss for Failure to State a Claim; granting 41 Motion to Dismiss; granting 19 Motion to Dismiss for Failure to State a Claim (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-10148-RGS
TOWN OF BARNSTABLE, MASSACHUSETTS, et al.
ANN G. BERWICK, et al.
MEMORANDUM AND ORDER
ON STATE DEFENDANTS’ MOTION TO DISMISS
May 2, 2014
This Complaint is the latest chapter in a long-running saga involving
the siting of a wind farm in Nantucket Sound.
The dispute pits the
Commonwealth of Massachusetts and the diversified energy policy
espoused by Governor Deval Patrick against an obdurate band of aggrieved
residents of Cape Cod and the Islands. Both sides in the dispute claim the
mantle of environmentalism, although for present purposes, plaintiffs1 have
doffed their green garb and draped themselves in the banner of free-market
economics. Plaintiffs filed the Complaint on January 21, 2014, seeking
Town of Barnstable, Massachusetts; Hyannis Marina, Inc.; Marjon
Print and Frame Shop Ltd.; The Keller Company, Inc.; The Alliance to
Protect Nantucket Sound (Alliance); Sandra P. Taylor; and Jamie Regan.
declaratory and injunctive relief against various State Defendants,2 while
naming Cape Wind Associates, LLC (Cape Wind) and NSTAR Electric
Company (NSTAR) as required parties, pursuant to Fed. R. Civ. P. 19(a).
Plaintiffs allege violations of the “dormant” Commerce Clause and the
Supremacy Clause of the United States Constitution and pray that the court
abrogate an order of the DPU approving an energy-supply contract entered
into between NSTAR and Cape Wind.
All defendants have moved to
dismiss (the State Defendants collectively, and Cape Wind and NSTAR
Cape Wind is a for-profit company with plans to develop a windpowered renewable energy generation facility in federal waters in
The State Defendants are Ann G. Berwick, in her official capacity as
Chair of the Massachusetts Department of Public Utilities (DPU); Jolette A.
Westbrook and David W. Cash, in their official capacities as Commissioners
of the DPU; and Mark Sylvia, in his official capacity as Commissioner of the
Massachusetts Department of Energy Resources (DOER).
In the context of a motion to dismiss, plaintiff’s plausible allegations
of facts are assumed to be true. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-556 (2007). Additionally, “documents the authenticity of which
are not disputed by the parties;  official public records;  documents
central to plaintiffs’ claim; or  documents sufficiently referred to in the
complaint” may also be considered on a motion to dismiss. Alt. Energy Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (citation
Nantucket Sound, a triangular-shaped 750 square-mile tract of the Atlantic
Ocean bounded by Cape Cod and the Islands of Martha’s Vineyard and
Nantucket. The proposed wind facility is to consist of 130 horizontal-axis
wind turbines dispersed over 24 square miles of open ocean, and is
designed to generate 454 megawatts of electricity at peak operation.
In 2001, Cape Wind applied for a permit to build the wind facility on
Horseshoe Shoals in the Sound, some five miles from the Cape Cod
coastline and roughly 16 miles from the Town of Nantucket. In August of
2002, the U.S. Army Corps of Engineers granted Cape Wind a permit to
build a meteorological tower to gather data in preparation for the project.
As Judge Tauro presciently predicted in rejecting a suit against the Corps of
Engineers’ action, this was just “the first skirmish in an eventual battle.”
Ten Taxpayer Citizen Grp. v. Cape Wind Assocs., LLC, 278 F. Supp. 2d 98,
99 (D. Mass. 2003). The Alliance, the leading plaintiff in this action, filed a
parallel (and equally unsuccessful) lawsuit also challenging the permitting
authority of the Corps of Engineers. See Alliance to Protect Nantucket
Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003),
aff’d, 398 F.3d 105 (1st Cir. 2005). 4
In affirming the district court’s dismissal of this challenge, the First
Circuit summarily held that “[i]n this case, however, we find it unnecessary
In 2005, the Massachusetts Energy Facilities Siting Board approved
the construction of two undersea electric transmission cables to connect the
proposed wind facility with the regional power grid. The Alliance promptly
filed suit protesting the approval.5 In 2007, the Secretary of the Executive
Office of Energy and Environmental Affairs issued a certificate approving
Cape Wind’s Final Environmental Impact Report.
The Ten Taxpayers
Group filed a suit in response.6 The Supreme Judicial Court (SJC) and the
Superior Court ultimately dismissed the two lawsuits, separately holding
that the Board and the Secretary had each exercised their approval
The Town of Barnstable, also a plaintiff in this case,
meanwhile filed a lawsuit of its own against the Siting Board. See Town of
to reach the question of Chevron deference [the principal ground invoked
by the district court] because legislative history reveals, with exceptional
clarity, Congress’s intent that [the Corps’ jurisdiction] not be restricted [in
the manner the Alliance argued for].” Alliance to Protect Nantucket Sound,
Inc. v. U.S. Dep’t of the Army, 398 F.3d 105, 109 (1st Cir. 2005).
Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities
Sitting Bd., 448 Mass. 45 (2006).
Ten Taxpayer Citizens Grp. v. Sec’y Office of Envtl. Affairs, 24
Mass. L. Rptr. 539 (2008).
Both approvals were conditioned on Cape Wind obtaining the
necessary permits to begin construction of the wind farm, including all
necessary federal licenses.
Barnstable v. Mass. Energy Facilities Siting Bd., 25 Mass. L. Rptr. 375
(2009). The Alliance, the Ten Taxpayer Group, and the Town of Barnstable
then joined all of their grievances in another Superior Court lawsuit, Town
of Barnstable v. Cape Wind Assocs., LLC, 27 Mass. L. Rptr. 1111 (2010),
followed by another onslaught against the Facilities Siting Board.
Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd.,
457 Mass. 663 (2010) (affirming the Siting Board’s authority to issue the
In April of 2010, Kenneth Salazar, the United States Secretary of the
Interior, issued a Record of Decision giving federal approval to the Cape
Other legal challenges continued to plague Cape Wind. Plaintiffs
here, and others, including the Wampanoag Native American Tribe, also
repaired to the federal court in the District of Columbia where they filed a
series of cases asserting violations of the Administrative Procedure Act, the
Endangered Species Act, the Migratory Bird Treaty Act, the National
Environmental Policy Act, the Outer Continental Shelf Lands Act, the Coast
Guard and Maritime Transportation Act, the Energy Policy Act, the
National Historic Preservation Act, and the Rivers and Harbors Act. The
cases were consolidated by the district court. On March 14, 2014, Judge
Walton issued a lengthy decision allowing summary judgment for all
defendants on all issues with two relatively minor exceptions (the fisheries
and wildlife services were directed to consider the reasonableness of
mandated turbine feathering operational adjustments and the possible
incidental take of North Atlantic right whales). See PEER v. Beaudreau,
2014 WL 985394 (D.D.C. Mar. 14, 2014).
Wind project.9 The Secretary also issued a lease to Cape Wind to operate a
wind energy facility on Horseshoe Shoals, effective November 1, 2010.
Notwithstanding, as one academic observer has accurately stated,
“[d]espite full federal and state approval of the project, CWA has continued
to face vehement opposition from local groups.”10
The Green Communities Act
Communities Act (GCA), Mass. St. 2008, ch. 169.11 Section 83 of the GCA
The Energy Policy Act of 2005 authorized the Department of the
Interior to grant leases for energy transmissions from the Outer
Continental Shelf for sources other than gas and oil.
Timothy H. Powell, Revisiting Federalism Concerns in the Offshore
Wind Energy Industry in Light of Continued Local Opposition to the Cape
Wind Project, 92 B.U. L. Rev. 2023, 2037 (2012).
The SJC in a related case summarized the mission and mandate of
the GCA as follows: “The stated purpose of the GCA is to ‘provide forthwith
for renewable and alternative energy and energy efficiency in the
[C]ommonwealth’ . . . . [GCA section 83] requires electricity distribution
companies to seek proposals from renewable energy developers twice in a
five-year period beginning on July 1, 2009, and, if reasonable proposals are
received, enter into long-term [Power Purchase Agreements (PPAs)] to
facilitate the financing of renewable energy generation facilities. . . . In
evaluating a PPA proposed under § 83, the [DPU] must consider its costs
and benefits, and may only approve the contract on a finding that it is a
‘cost effective mechanism for procuring renewable energy on a long-term
basis.’” Alliance to Protect Nantucket Sound, Inc. v. Dep’t of Pub. Utils.,
461 Mass. 166, 168-169 (2011).
requires Massachusetts electric utilities to solicit long term supply
proposals from renewable energy generators. Among the favored suppliers
are generators of wind energy like Cape Wind. The GCA requires DPUregulated utilities to obtain at least three percent of their total energy
supply from “green” sources.
As originally enacted, the GCA contained a provision requiring that
all eligible alternative energy suppliers be located within Massachusetts or
its adjacent state and federal waters. On June 9, 2010, the DPU suspended
the territorial restriction12 after TransCanada Power Marketing Ltd.
challenged the limitation in federal court under the dormant Commerce
In 2012, the Legislature amended the GCA to eliminate the
The National Grid – Cape Wind Contract
Section 83 of the GCA stated that if any provision of the section was
subject to a judicial challenge, the DPU would be “‘entitled to suspend the
applicability of the challenged provision pending the outcome of the
judicial proceeding, and to issue any necessary orders to ensure that the
unchallenged sections of the Act remain in effect.’” Alliance, 461 Mass. at
170 (quoting Mass. St. 2008, ch. 169, § 83, tenth par.). The DPU issued an
order removing the words “within the Commonwealth of Massachusetts”
from section 83 and any associated regulations.
See TransCanada Power Mktg. Ltd. v. Bowles, No. 4:10-cv-40070TSH (D. Mass. filed April 16, 2010).
In December of 2009, National Grid, a competitor of defendant
NSTAR, sought approval from the DPU to enter into negotiations with Cape
Wind over a long-term energy-supply contract.14
The parties signed a
Power Purchase Agreement (PPA) on May 7, 2010. Plaintiffs allege that the
contract prices that National Grid agreed to pay were significantly above
the market price for electricity in general and well above the price being
charged by other generators of renewable energy in 2010. Compl. ¶ 48. In
May of 2010, National Grid submitted two Cape Wind contracts to DPU for
DPU approved the first contract (for 50% of Cape Wind’s
anticipated power supply to be distributed by National Grid), but rejected
the second (for the remaining 50%, to be assigned to another purchaser for
Two separate avenues of appeal were taken from DPU’s approval of
the National Grid contract.
The Alliance (along with TransCanada)
GCA regulations required National Grid to submit a timetable and
method of solicitation to DPU for review and approval prior to soliciting an
Because the PPAs were negotiated prior to the suspension of the
geographical restriction in the GCA, DPU required National Grid to
demonstrate that the contracts had not been influenced by the nowsuspended limitation. DPU held thirteen days of evidentiary hearings
involving National Grid and nineteen intervening parties (including the
appealed directly to the SJC, asserting, among other claims, that DPU’s
approval of the contract violated the dormant Commerce Clause. The SJC
rebuffed the objections and affirmed DPU’s decision, specifically rejecting
the dormant Commerce Clause claim.
See Alliance, 461 Mass. at 174
(noting that “[t]he constitutional challenge advanced by the Alliance and
TransCanada fails”).16 A second group of plaintiffs filed a challenge with
the Federal Energy Regulatory Commission (FERC), alleging that the DPU
had violated the Supremacy Clause by encroaching on FERC’s exclusive
prerogative under the Federal Power Act (FPA) to set national wholesale
electricity prices. FERC rejected the argument for, among other reasons,
the fact that the contract as approved by DPU explicitly required the parties
to obtain wholesale rate clearances from FERC.
See Californians for
Renewable Energy, Inc. (CARE) & Barbara Durkin v. Nat’l Grid, Cape
Wind, & DPU, Order Dismissing Complaint, 137 FERC ¶ 61,113 (2011).17
The SJC also acknowledged a potential standing deficiency with
respect to plaintiff Alliance. See Id. at 173 n. 13 (“The Alliance has not
alleged that it or any of its members have been harmed in their ability to
compete for § 83 contracts by the claimed infringement of the commerce
clause. However, because TransCanda has alleged such harm, we consider
17 “To the extent the complainants instead challenge rates as unjust
and unreasonable under the FPA, they have not shown how they are unjust
and unreasonable. The contracts approved by the Massachusetts
Commission indicate that the wind facilities must either have QF status or
file rates with this Commission pursuant to section 205 of the FPA. Cape
The NSTAR – Cape Wind Contract
After the suspension of the geographical limitation, DPU had directed
NSTAR and other utilities to reopen their Requests for Proposals (RFPs) to
take bids from out-of-state generators. Compl. ¶ 53. NSTAR did so and
ultimately contracted with three land-based wind generators, Groton Wind,
LLC, New England Wind, LLC, and Blue Sky East, LLC. Id. ¶ 54. Plaintiffs
allege that the price of wind energy from NSTAR’s contracts with the three
land-based generators was approximately one-half the initial price agreed
to by National Grid in its contract with Cape Wind. Id. ¶¶ 55-57. NSTAR
chose not to enter a contract with Cape Wind. Id. ¶ 56. Plaintiffs allege
that NSTAR’s “refusal” to contract with Cape Wind threatened the very
existence of the project because National Grid had secured DPU approval to
distribute only half of the wind farm’s output (the second National Grid
contract, for the remaining 50% had been rejected by the DPU). Id. ¶ 58.
On November 24, 2010, NSTAR filed an application with DPU for
approval of a merger between it and Northeast Utilities.18 The Department
Wind indicates that its rates will be filed with this Commission.
Complainants will have the opportunity to intervene in any proceeding
seeking Commission approval of those rates.” Id.
Under Mass. Gen. Laws ch. 164, § 96, DPU has the sole authority to
approve mergers of utilities subject to its jurisdiction, including NSTAR.
of Energy Resources (DOER), the agency responsible for implementing the
state’s renewable energy priorities (see Mass. Gen. Laws ch. 25A, § 6),
intervened in the merger proceedings. DOER had no power to veto the
merger,19 but requested that DPU modify its standard of review from “no
net harm” to one that would “determine whether the proposed merger will
provide a substantial net benefit to the public interest . . . .” Compl. ¶ 66. In
response, DPU entered an Interlocutory Order acknowledging that the GCA
(and the related Global Warming Solutions Act (GWSA)) required it to
reconsider its standard of review, and adopted the “net benefits” standard.
In July of 2011, DOER asked the DPU to stay the merger pending an
assessment of its potential impact on consumers. NSTAR and Northeast
argued that a stay would derail the merger. Compl. ¶ 68. On September
28, 2011, DOER submitted a filing urging DPU to require NSTAR to
purchase off-shore wind energy as a condition for approving the merger.
Id. ¶ 70. NSTAR and Northeast opposed the request, arguing a potential
Plaintiffs allege that, at the time of the merger application, neither NSTAR
nor Northeast was involved in “significant negotiations” with Cape Wind to
purchase power. Compl. ¶ 61.
In their Complaint, plaintiffs take the position that DOER had the
ultimate power to block the NSTAR-Northeast merger, although elsewhere
they have acknowledged that the approval power is vested solely in the DPU
(as the statute makes clear). See Dkt. #38 at 9 (State Defendants’ brief,
quoting the Alliance in other matters).
violation of the dormant Commerce Clause as Cape Wind appeared to be
the only viable off-shore wind developer.
Plaintiffs allege that NSTAR
representatives subsequently entered into “secret negotiations with the
Patrick Administration.” Id. ¶ 75. On February 15, 2012, NSTAR and
DOER entered into a settlement agreement, which included a condition
that NSTAR pursue a PPA with Cape Wind on terms that were
“substantially the same” as those of the National Grid-Cape Wind contract.
The settlement agreement was subject to DPU approval.
On February 24, 2012, NSTAR submitted to DPU a Memorandum of
Understanding (MOU) between NSTAR, DOER, and Cape Wind setting out
a timetable and method of solicitation of GCA bid proposals. The DPU
invited comment on the MOU, and the Alliance, among others, submitted
statements in opposition (including allegations that DOER had violated the
dormant Commerce Clause). On March 22, 2012, DPU approved the MOU.
The Alliance appealed the DPU’s order to the SJC, but subsequently
withdrew the appeal. See Alliance to Protect Nantucket Sound v. Dep’t of
Pub. Utils., No. SJC-2012-0171 (filed Apr. 23, 2012; dismissed Jan. 8,
2013). On April 4, 2012, DPU approved the merger between NSTAR and
On March 23, 2012, NSTAR and Cape Wind executed a PPA under
which NSTAR agreed to purchase energy, capacity, and renewable power
certificates from Cape Wind over a 15-year period. Compl. ¶¶ 84 and 86.
On March 30, 2012, NSTAR submitted the PPA to DPU for approval. Id. ¶¶
84 and 90. The contract required Cape Wind to comply with the rules of
FERC and other government entities, and required Cape Wind to obtain
and maintain the requisite permits and approvals from FERC, including
wholesale rates clearances. Alliance intervened in the proceedings, which
included three public hearings and two evidentiary hearings. On November
26, 2012, DPU approved the PPA. Neither the Alliance nor any other party
to the proceedings appealed DPU’s final decision to the SJC. On January
14, 2014, over fourteen months after the DPU’s decision, plaintiffs filed this
Plaintiffs seek a declaration that Massachusetts violated both the
dormant Commerce Clause and the Supremacy Clause “when it used its
influence over NSTAR’s merger request to bring about NSTAR’s entry into
an above-market wholesale electricity contract with Cape Wind, a politically
favored renewable energy project in Massachusetts, to buy electricity at a
Compl. ¶ 4.
Plaintiffs also seek injunctive relief to
“remedy the constitutional violation” by invalidating the Cape Wind
contract that “Massachusetts compelled NSTAR to enter.” Id. Plaintiffs
allege that this is necessary to “alleviate the increased electricity costs that
NSTAR customers such as Plaintiffs will be forced to pay as a result of the
illegal, above-market contract.” Id.
Plaintiffs’ Complaint sets out two causes of action.
In Count I,
plaintiffs allege that DOER “intruded on FERC’s exclusive jurisdiction to
regulate wholesale electric energy prices” in violation of the Supremacy
Clause and the Federal Civil Rights Act, 42 U.S.C. § 1983.20 Compl. ¶ 107.
In Count II, plaintiffs allege that “by conditioning its approval of the merger
on the execution of a PPA between NSTAR and Cape Wind, DOER
prevented out-of-state generation facilities from competing with Cape
Wind,” in violation of the dormant Commerce Clause and 42 U.S.C. § 1983.
Defendants seek dismissal of the Complaint on numerous
grounds, including sovereign immunity, Burford abstention, comity, claim
Section 1983 “does not, by its own terms, create substantive rights;
it provides only remedies for deprivations of rights established elsewhere in
the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d
Cir. 1996); see also Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (same).
A violation of a “right” that is not “secured” by federal law is not actionable
under section 1983. Golden State Transit Corp. v. City of Los Angeles, 493
U.S. 103, 106 (1989). At the hearing on the motion to dismiss, plaintiffs’
counsel conceded that section 1983 does not authorize a private right of
action based on the Supremacy Clause and that plaintiffs were relying
instead on a right of direct action.
preclusion, standing, and failure to state a claim. As the debate begins and
ends with the Eleventh Amendment, I will devote the bulk of the discussion
to the doctrine of sovereign immunity, and then briefly explain why neither
the Supremacy Clause nor the dormant Commerce Clause give rise to a
substantive right of action benefitting plaintiffs.
The Eleventh Amendment states that “[t]he judicial power of the
United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of
another State, or by citizens or subjects of any foreign state.” U.S. Const.
“The Supreme Court . . . has expanded the doctrine of
sovereign immunity beyond the literal words of the Eleventh Amendment,
holding that state governments, absent their consent, are not only immune
from suit by citizens of another state, but by their own citizens as well.”
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 529 n.23 (1st Cir.
2009) (citing Alden v. Maine, 527 U.S. 706, 728-729 (1999)).21
Eleventh Amendment largely shields States from suit in federal court
without their consent, leaving parties with claims against a State to present
them, if the State permits, in the State’s own tribunals.” Pastrana-Torres v.
The Commonwealth has not consented to being sued for money
damages in either the federal courts or in its own courts under section
1983. Woodbridge v. Worcester State Hosp., 384 Mass. 38, 44-45 (1981).
Corporacion de Puerto Rico Para La Difusion Publica, 460 F.3d 124, 126
(1st Cir. 2006) (quoting Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.
30, 39 (1994)). A state entity is similarly immune from suit if it functions
as an “arm of the state.” Coggeshall v. Mass. Bd. of Registration of
Psychologists, 604 F.3d 658, 662 (1st Cir. 2010).
A suit against a government official in his or her official capacity is
the same as a suit “against [the] entity of which [the] officer is an agent.”
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55
(1978). Thus, a plaintiff may not resort to the expedient of naming a state
official as a defendant as a means of circumventing the Eleventh
Muirhead v. Meacham, 427 F.3d 14, 18 (1st Cir. 2005)
(quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)). A narrow exception to
the rule has been carved out by Ex parte Young, 209 U.S. 123, 159-160
(1908), and Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 293294 (1913). The Eleventh Amendment does not bar a suit against a State
officer in his or her official capacity where the complaining party seeks
prospective equitable relief from a continuing violation of federal law.
Green v. Mansour, 474 U.S. 64, 68 (1985). A classic example is Georgia
R.R. & Banking Co. v. Redwine, 342 U.S. 299 (1952), in which the plaintiff
railroad sought to enjoin the Georgia State Revenue Commissioner from
assessing or collecting ad volarem taxes in violation of the Article I
prohibition against the enactment by any State of a law impairing the
obligation of contracts. U.S. Const., Art. I, § 10, cl. 1. The Supreme Court
affirmed the jurisdiction of the district court to grant the relief requested.
“This Court has long held that a suit to restrain unconstitutional action
threatened by an individual who is a state officer is not a suit against the
State.” Id. at 304. See also Edelman v. Jordan, 415 U.S. 651, 664 (1974)
(“[T]he relief awarded in Ex parte Young was prospective only; the
Attorney General of Minnesota was enjoined to conform his future conduct
of that office to the requirement of the Fourteenth Amendment.”)
(emphasis added); Rosie D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002)
(observing that the Ex parte Young exception allows a federal court to
“enjoin state officials to conform future conduct to the requirements of
federal law.”) (emphasis added).
The rule is different where the relief sought is retroactive in nature.
“[A] suit, although nominally aimed at an official, will be considered one
against the sovereign ‘if the judgment sought would expend itself on the
public treasury or domain, or interfere with the public administration, or if
the effect of the judgment would be to restrain the Government from
acting, or to compel it to act.’” Muirhead, 427 F.3d at 18 (quoting Dugan,
372 U.S. at 620). As summarized by Professor Tribe, “[a]ctions for
retroactive relief, even when styled as requests for an injunction and even if
nominally directed against state officers and not the state itself, will
ordinarily be barred by the Eleventh Amendment if the effect of the
judgment is to burden the state treasury.” Laurence H. Tribe, American
Constitutional Law § 3-25 at 535 n.99 (3d ed. 2000).
That the relief being sought here is retroactive and thus barred by the
Eleventh Amendment is easily ascertained by turning to the specific
demands set out in plaintiffs’ Complaint for Declaratory and Injunctive
Relief. Prayers (a), (b), and (c) seek a declaration that (1) the DPU acted
illegally in “forcing” NSTAR to enter a contract with Cape Wind at a
specified price,22 (2) that the DPU’s order approving the contract is
therefore null and void, and (3) that the contract is thus “null and void and
without legal force or effect.” Prayer (d) is a variant on (a) through (c) that
seeks an injunction preventing DPU from taking any steps to enforce its
order approving the contract and to do whatever is necessary to remedy the
While ordinarily the court will accept plausible facts set out in the
Complaint as true, this is not the case where, as here, documents referenced
in the Complaint (specifically the DPU order) contradict on their face a
supposed fact as plead. The allegation that DPU dictated that NSTAR
procure power from Cape Wind at a specified price is misleading and
constitutional harms caused by its allowing the contract to take effect. An
award of prospective declaratory relief that has “much the same effect as a
full-fledged award of damages or restitution by the federal court” is a form
of relief distinctly barred by the Eleventh Amendment. Mills v. State of
Maine, 118 F.3d 37, 54-55 (1st Cir. 1997). Here the effect of a declaration
that Massachusetts had illegally compelled NSAR and Cape Wind to enter
an above-market price contract for wind energy would inevitably lead to
restitutionary claims against the Commonwealth by NSTAR and Cape
Wind, while an injunction ordering DPU to cease enforcement of the PPA
and to take remedial measures for the alleged constitutional harms23 would
restrain the State from acting by frustrating its efforts to implement the
policies enunciated in the GCA and the GWSA, while further bleeding the
Plaintiffs attempt unsuccessfully to distinguish the cases in which
sovereign immunity was found to compel dismissal of an action against
The retrospective nature of plaintiffs’ injunctive request is
underscored by the demand that DPU take remedial steps to return the
relationship between NSTAR and Cape Wind to the status quo ante.
However, with respect to the PPA itself, there is nothing further for DPU
(or DOER) to do – the PPA is an historical fact and neither agency has any
further action to take, whether of an approval or enforcement nature. As
defendants accurately state in their Memorandum, “not a single allegation
of the Complaint identifies or alludes to any future actions the State
Defendants must take with respect to the contract.” Def’s Mem. at 15.
state officials, including a recent decision by this court, Tyler v.
Massachusetts, 2013 WL 5948092 (D. Mass. Nov. 7, 2013). Plaintiffs state
that, “DPU Order 12-30 constitutes an ongoing legal entitlement for NSTAR
to pay certain rates to Cape Wind and pass them down to consumers,
whereas the [probation condition in Tyler requiring that the rapist
acknowledge paternity of the child and abide by any child support orders
issued by the Probate and Family Court] did not constitute an ongoing legal
entitlement in any way.” Pl.’s Opp’n Mem., Dkt. #48 at 20. However, what
plaintiffs seek here is precisely analogous to Tyler (although much less
sympathetic), in that they seek relief from the ongoing “effects” of past state
action “in the form of elevated electricity rates over fifteen years,” just as
Tyler unsuccessfully sought relief from the enduring effects of a state court
In rejecting the “ongoing effects” doctrine as a means of
Negron-Almeda v. Santiago, 579 F.3d 45, 53-54 (1st Cir. 2009),
offered by plaintiffs’ counsel at the hearing, is no more persuasive. In that
case, the court found that the Eleventh Amendment did not bar an order of
prospective relief, that is, the reinstatement of an unjustly fired public
employee, where the remedy did not address monetary damages for a past
wrongful termination and where the intent of the order was to conform the
future conduct of the state officials involved to the requirements of federal
law. See Papasan v. Allain, 478 U.S. 265, 278 (1986) (“Relief that in
essence serves to compensate a party injured in the past by an action of a
state official in his official capacity that was illegal under federal law is
barred even when the state official is the named defendant. . . . On the other
hand, relief that serves directly to bring an end to a present violation of
federal law is not barred . . . .”). Here, by contrast, plaintiffs are not seeking
circumventing the Eleventh Amendment, the law is not cruel, but
pragmatic in its understanding that the doctrine if applied would have the
effect of vitiating the right guaranteed to the States in the Eleventh
Amendment to be free from unconsented suits in the federal courts. See,
e.g., Green, 474 U.S. at 68 (“Both prospective and retrospective relief
implicate Eleventh Amendment concerns, but the availability of prospective
relief of the sort awarded in Ex parte Young gives life to the Supremacy
Clause. Remedies designed to end a continuing violation of federal law are
necessary to vindicate the federal interest in assuring the supremacy of that
law. But compensatory or deterrence interests are insufficient to overcome
the dictates of the Eleventh Amendment.”) (emphasis added) (internal
citations omitted); Edelman v. Jordan, 415 U.S. at 668 (noting the remedy
must be a “consequence of [state] compliance in the future with a
substantive federal-question determination” otherwise it “is in practical
effect indistinguishable in many aspects from an award of damages against
to prevent DPU from approving future contracts between NSTAR and Cape
Wind, but to undo a contract already in force by way of a declaration that
state officials violated federal law in the past. See Nat’l R.R. Passenger
Corp. v. McDonald, 2013 WL 5434618, at *13 (S.D.N.Y. Sept. 26, 2013)
(quoting Green, 474 U.S. at 68) (“Since the [alleged state violation] was
complete in 2008, there is no ‘ongoing violation of federal law’ or ‘threat of
state officials violating the law in the future.’”).
the State . . . resulting from a past breach of a legal duty on the part of the
defendant state officials”).
Because the Eleventh Amendment requires that this case be
dismissed, there is no reason to consider the additional grounds for
dismissal advocated by defendants, other than to note that the result would
be no different were the court to rule on the substance of the claims,
whether brought independently under section 1983,25 or directly under the
Supremacy Clause,26 or under the dormant Commerce Clause.27
“42 U.S.C. § 1983 is properly invoked to redress violations of a
federal statute . . . if the statute creates enforceable ‘rights, privileges, or
immunities,’ and if Congress has not foreclosed such enforcement in the
statutory enactment itself.” Eric L. By and Through Schreiber v. Bird, 848
F. Supp. 303, 308 (D.N.H. 1994) (citing Maine v. Thiboutot, 448 U.S. 1
(1980) and Wright v. Roanoke Redev. and Hous. Auth., 479 U.S. 418
(1987)). Plaintiffs fail to identify any right privately enforceable under
section 1983. See, e.g., Golden State Transit, 493 U.S. at 107 (noting that
“[t]he Supremacy Clause, of its own force, does not create rights
enforceable under § 1983” and further that “[the] Clause is not a source of
any federal rights” but rather “secures federal rights by according them
priority whenever they come in conflict with state law”) (internal
quotations and citations omitted).
Even assuming that a private citizen has standing (which is to say
the least, highly doubtful) to act as a private Attorney General in seeking to
secure FERC’s Supremacy Clause authority in approving wholesale
electricity rates, there is no federal right at stake, given that the DPU order
requires NSTAR and Cape Wind to file their rates for approval by FERC.
Plaintiffs have essayed this argument before (that DPU violated the FPA by
usurping FERC’s exclusive jurisdiction to determine wholesale rates) in
challenging the DPU’s order approving the contract between Cape Wind
For the foregoing reasons, the defendants’ motions to dismiss are
ALLOWED with prejudice. The Clerk will enter judgment for defendants
and close the case.28
and National Grid. FERC rejected the argument then, and there is no doubt
that it would do so again. See CARE, 137 FERC ¶ 61113. Moreover, while it
may be a fine point, the FPA reserves to the utility, and not to FERC, the
power to establish rates, by contract or otherwise. See Atl. City Elec. Co. v.
F.E.R.C., 295 F.3d 1, 10 (D.D.C. 2002). FERC’s power to modify wholesale
rates only arises after rates have been filed with FERC and found to be
unlawful. Thus, what may have influenced a utility’s choice in setting its
initial rates does not encroach on the statutorily-granted power of FERC to
review and approve those rates after the fact. And finally, to the extent that
plaintiffs have an interest in FERC’s future rate setting, as the FERC noted
in the National Grid decision, “[c]omplainants will have the opportunity to
intervene in any proceeding seeking Commission approval of those rates.”
CARE, 137 FERC ¶ 61113.
Plaintiffs lack standing to bring suit under the dormant Commerce
Clause as they do not compete in the power generation market, as noted by
the SJC previously in the National Grid case. Alliance, 461 Mass. at 172
n.13. Nor can they claim standing as taxpayers or end-use consumers. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340-349 (2006); Ben
Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372, 1381
(8th Cir. 1997).
A final note. In entering this decision, the court takes no position
on the underlying merits of siting a wind farm in Nantucket Sound or the
wisdom of a state policy that encourages utilities to purchase renewable
forms of energy at above-market prices. If instead of a judicial robe, I were
to wear the hat of John Muir or Milton Friedman, I might well conclude
that the Cape Wind project should have been built elsewhere (or not built at
all), or that the NSTAR-Cape Wind contract should never have been
approved. But in this case, the Governor, the Legislature, the relevant
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
public agencies, and numerous courts have reviewed and approved the
project and the PPA with NSTAR and have done so according to and within
the confines of the law. There comes a point at which the right to litigate
can become a vexatious abuse of the democratic process. For that reason, I
have dealt with this matter as expeditiously as possible.
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