Well, maybe not yet… but close enough that it feels more undead than alive. (via 20th Century Fox)

About 15 years after biomass entered the public consciousness of Springfield, the matter is still milling paper. Most recently, this took the form of a fresh defeat for the proposed project once slated for East Springfield. What now seems like beating an expired horse, is actually a reminder of how far opponents have gone. Earlier efforts to overturn its permits failed in court. Now, the biomass plant on Page Boulevard has never looked deader.

Last month, Massachusetts Land Court Chief Justice Gordon Piper backed the Springfield Zoning Board of Appeals, which ruled the plant’s building permit had expired. The developer, Palmer Renewable Energy had appealed the ZBA’s May 2021 determination shortly after it came down. PRE argued a state law extending building permits applied later in the biomass saga, but in a 15-page ruling, Piper rejected this argument.

“The court has determined that Building Permits expired by no later than May 13, 2016, and that they were no longer valid on the date of the 2021 ZBA Decision,” the decision states.

Longtime opponents of the biomass plant welcomed the ruling. Both Council President Jesse Lederman and Ward 2 City Councilor Michael Fenton, who represents the area where PRE wants to build the plant, feted the decision in a press release.

“While the powers behind this proposal to pollute the air of our children have long sought to twist the laws of the Commonwealth in their favor, we’ve never stopped fighting alongside residents and advocates to protect the people of Springfield from the harm it would have caused,” Lederman said in a statement.

The victory provides a welcome coda for Lederman, who leaves the Council this month after an unsuccessful bid for mayor. The battle has dragged on for well more than half his life. It has been a foundational event in his work as a teenage activist.

For Fenton, who has the votes to take over as president next month, the issue comes full circle. During an earlier stint as Council President, the Council attempts to stop the plant through the court were not successful.

“It’s been over a decade of twists and turns, but our resolve never wavered and a small group of unpaid volunteers kept working to ensure that East Springfield will never host a biomass incineration,” Fenton said. “We will never stop defending this position and the air quality of our city. I am proud to have been a part of the persistent resistance. I want to especially thank Council President Lederman for leading on this issue and working with me and pro bono counsel at CLF to deliver this outcome.”

Lederman with anti-biomass props at an event celebrating the DEP’s reversal. Fenton is the to the right of the smokestack. The masks are from the covid-era, but fit anti-air pollution activism, too. (WMP&I)

The administration of Mayor Domenic Sarno has been in the developers’ corner all along. The developers’ campaign contributions has cast unwelcome attention on several pols, including Sarno, over the years. CLF, or the Conservation Law Foundation, had been a consistent ally of Springfield biomass opponents.

“It is unconscionable that anyone would build such a dirty power plant right across the street from a residential neighborhood,” said CLF attorney Johannes Epke in Fenton and Lederman’s release. “Inefficient biomass plants like the one proposed here don’t make sense anywhere in 2023, and especially not in a community in Springfield already overburdened by air pollution.”

The 2021 decision from the ZBA arose after the City Council petitioned for a ruling on PRE’s permit. Despite the Sarno administration’s insistence the walking dead project was very much alive, the ZBA found the permit expired. This decision was at the center of the November 30 Land Court ruling.

The case turned on when a decade-plus state law, which extended all building permit by four years, affected the biomass permit. To apply the law here, the Land Court had to considered the entire legal history of the plant. The Springfield City Council revoked PRE’s permit in 2011 and the next year the ZBA said the permit was necessary. A Land Court ruled that the permit was unnecessary. In 2015, the Appeals Court upheld that Land Court ruling and the Supreme Judicial Court declined to intervene.

Normally, work under a building permit must begin within 180 days of issuance or the process starts over. The plant would be virtually impossible to approve under the since-revised zoning ordinance without Council acquiescence.

When tacking on the four-year extension, PRE’s permits could be stretch out into late 2015 or early/mid 2016. (It depends on whether to count from the Council’s revocation or the ZBA’s 2012 ruling). Either way, under this formula, the latest the extension would go is May 13, 2016—well before PRE gave evidence of construction activity.

What PRE wanted, the justice indicated, was to begin counting from its 2014 or 2015 court wins. This would push the cutoff well into 2017. Piper rejected this.

It’s time to pay the Piper thanks. (via Mass Real Estate Bar Association)

“At bottom, Palmer’s argument asks the court to accept that the Act was intended to grant permit recipients a ‘chit,’ entitling them to stack a period of extension, ultimately four-years in duration, on top of all other time periods available to keep alive permits earlier received,” the justice writes. “This interpretation defies common sense, and would stretch the intention of the legislature beyond its breaking point.”

PRE could still appeal, which its lawyer did not rule out, speaking to The Republican. As an issue of statutory interpretation, it is possible the Appeals Court could smack Piper down. However, it would hardly ensure the plant moves forward.

Even if the Land Court were reversed, there remains a question as to whether what construction activity PRE did from 2017 onward keeps the building permit alive. Indeed, despite losses in the original biomass litigation, opponents observed that PRE did nothing for over a year.

A bigger problem for PRE was that the state had all but cut off the subsidies and permits it needs. In 2021, the Massachusetts Department of Environmental Protection reversed its years-long support, and pulled the plant’s air quality permit. Meanwhile, the state has stripped funds for biomass in state renewable energy programs.

Hypothetically, PRE could convince a court to reverse the DEP and try to tap funding under an older program. However, PRE would still need to prevail in the litigation over the ZBA’s 2021 ruling. Only if the 2011/2012 building permits are still active could it hope to proceed.

All of this is possible. Yet, after shambling around for eight years since its last court victory, the zombie biomass plant in Springfield has never looked more dead.