Biomass. (via AMC)

This past Wednesday, the Massachusetts Appeals Court overturned a lower court ruling and, in effect, reanimated—although did not fully resurrect—the prospect of a biomass plant in Springfield. The decision gives the biomass plant proposed for Page Boulevard enough life to punch open the project’s coffin. However, the project has a long way to go before it can lift itself out of the grave.

The nearly 18 year-long biomass saga has included many deaths, wakes and resuscitations. Indeed, the Appeals Court ruling turns on an area where opponents have lost before—land use and permitting. In this case, it was a state law nearly as old as the biomass project itself that proved crucial. Opponents suffered a setback in January on the revocation of the plant’s air permit, but that matter is on appeal.

The Springfield Zoning Board of Appeals was a defendant, but lawyers for the City Council defended the city’s action. The Conservation Law Foundation, which has played a prominent role through the biomass saga, represented the Council.

“The court decision is disappointing, especially considering that Springfield community members and elected officials have said no to this plant for a decade,” CLF Staff Attorney Suhasini Ghosh said in a release. “The developer’s permits don’t reflect today’s laws and the facility will bring harm and pollution to a community that does not want or need more dirty air. CLF will not stop in its fight for clean air for everyone in Springfield.”

The ruling last week turned on a technical question of when the clock began to run for the developer, Palmer Renewable Energy, to begin construction. The city had contended that the usual suspension of deadlines to begin work due to litigation had been subsumed by legislation. A Great Recession-era bill had extended all local and state permits in the commonwealth issued between August 15, 2009 and August 15, 2012. PRE countered that all extensions occurred one after another, stringing out well into 2020 and beyond.

The Land Court had agreed with the city. The Appeals Court, which consisted of a panel of Justices William Meade, Paul Hart Smyth and Maureen Walsh, went in a different direction.

Appeals Court breathes life (or smoke?) into biomass in Springfield. (WMP&I)

“[W]e conclude, to the contrary, that the four year extension of the building permits began to run after the term of the permit as extended by litigation tolling,” the justices wrote. “We also conclude that the litigation tolling period began in this case when the city council…and other opponents appealed to the zoning board of appeals (board) from the building commissioner’s decision to issue the permits.”

The biomass project has lumbered through Springfield for nearly two decades. The construction waste turned woodchip-fueled facility had received Council and mayoral approval at first. That coincided with the return of ward representation on the Council.

Matching the public mood, the Council turned against the project hard and rescinded the special permit. Springfield already has some of the asthma rates in the nation and the project would likely only worsen that. Opposition to it became a defining political issue in the city and a foundation of the political brands of pols like former Councilor Jesse Lederman and Council President Michael Fenton. Nevertheless, Mayor Domenic Sarno remained a steadfast supporter despite the negative attention arising from the developers’ campaign contributions to the mayor

The ZBA sided with the Council on rescission, and the state, once supportive, began to shift as well. These developments led to the years of litigation that have slowed or halted construction. PRE sued to overturn the ZBA. The Appeals Court sided with PRE in a September 8, 2015, ruling. It said PRE never needed a special permit from the Council. Litigation formally terminated on October 30.

The timing of this first round of litigation was at the heart of the Appeals Court ruling last week. The court found that the four-year permit extension legislation did not begin to run until September 2015. Between that and the usual 180-day window for all permits, PRE’s deadline ran into March 2020. This timeframe would have ended on March 31, 2020. However, the legislature extended permits in effect on March 10 until the COVID-19 state of emergency ended.

Oh, him again? The ruling is a latent side effect of COVID. (via wikipedia)

Then-Governor Charlie Baker terminated the emergency on June 15, 2021. Based on the Appeals Court ruling last week, PRE would have had until then, plus the 21 days left under other extensions. The City Council appealed to the ZBA on May 21, 2021. Yet, the court notes the original request to the Building Commission came the previous fall.

Despite these recent legal victories, the courts have not exactly exhumed the biomass plant yet. While PRE convinced a Suffolk Superior Court judge to vacate the Department of Environmental Protection’s revocation of the air quality permit, the state is appealing. The Appeals Court has not yet docketed the case.

Even if that ruling stood, it is possible that DEP could still revoke it on other grounds. Judge Christopher Belezos found DEP’s revocation was arbitrary and capricious. However, the agency could find a way to reaffirm its ruling and rescind PRE’s air quality permit for good.

In addition, the court on Wednesday noted that its ruling does not address whether the project is subject to changes to Springfield’s zoning ordinance. Amid the first round of litigation, the Council revised the city zoning ordinance. It now makes it clear that its approval was necessary for such a project in the future.

Moreover, it is unclear whether the project can qualify for state tax credits. At one time, PRE could have qualified for state clean energy funds. Revisions that now exclude biomass could disqualify the plant from accessing such monies.

In the meantime, the Council is considering its next steps. It could seek review from the Supreme Judicial Court or try to challenge the proposal under the new zoning ordinance. Regardless, councilors insist they will keep trying to put the project back in the ground.

“We will not stop our fight for clean air,” Council President Fenton said in the CLF’s release.