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Lead-in. Thank you, Ralph for those nice words John Nichols had been looking forward to giving this talk – let’s all wish him a speedy recovery from his back surgery this week

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Presentation Transcript
lead in
Lead-in
  • Thank you, Ralph for those nice words
  • John Nichols had been looking forward to giving this talk – let’s all wish him a speedy recovery from his back surgery this week
  • Hope my pinch-hit performance will come close to the talk John would have given – I am familiar with his lawsuits against the Bloom Energy venture but can only approximate his personal perspectives.

7/19/13

a ground rule
A ground rule
  • In talking about these lawsuits, I’m not going to argue the merits of the issues unless someone brings it up in the Q&A.
  • Instead, the focus will be on why John got involved in these suits, how he went about it, and how he feels about the results thus far.

7/19/13

show of hands
Show of hands
  • Delmarva customers?
  • Support special tariff for Bloom Energy as inducement to build fuel cell factory in Newark, DE at site of former Chrysler plant?
  • Have taken any concrete actions to oppose the tariff?

7/19/13

let me tell you a story
Let me tell you a story
  • You’ve probably heard about “Mr. Smith goes to Washington” (1939) – Jimmy Stewart as the innocent dupe, appointed to fill the remainder of a Senate term, who is initially made a fool of but winds up exposing some corrupt politicians in a speech on the Senate floor.
  • “Mr. Nichols goes to court,” will be a bit more realistic – and the ending remains to be seen.

7/19/13

slide5
2011
  • Late in the legislative session, a bill surfaced that would (a) classify power generated using Bloom Energy fuel cells as “renewable,” (b) allow RECs for producing it, and (c) authorize PSC to approve a long-term tariff for a proposed Delmarva Power project using Bloom Energy fuel cells made in Delaware.
  • Very few legislators were inclined to oppose “green jobs,” so the bill – supported by the governor – sailed through.
  • Subsequent opposition to the PSC tariff generated a raft of public comments, almost all negative, but this opposition was overridden and the tariff was approved.
  • One option remained: a legal challenge.

7/19/13

why me
Why me?
  • Skepticism about the Bloom Energy venture came naturally, but was John willing to invest the time – energy – loss of popularity – and maybe money – to do something about it?
  • He thought ratepayers and taxpayers were being taken for a ride by politicians and crony capitalists – felt a sense of obligation to represent the community (bigger than himself).
  • However, many people use the bigger than yourself line. Real point is who John wanted to stand up for, namely the people who always wind up paying for things versus those who stand to benefit (psychic satisfaction, economic gain, or political power).

7/19/13

raising money
Raising money
  • A legal challenge required a backer (or backers) willing and able to pay for it – someone who wasn’t looking for a financial payoff (none available).
  • John talked to many people.
  • Somehow, he recruited a small, but high powered advocacy group called “Cause of Action” – on the understanding that they would choose the legal theory.

7/19/13

the complaint 6 20 12
The complaint (6/20/12)
  • John Nichols & Fuel Cell Energy (recruited by Nichols) v. Gov. Markell & five PSC commissioners.
  • Count 1, dormant commerce clause, Fuel Cell Energy (a Ct. company) didn’t get chance to bid
  • Count 2, equal protection, Delmarva ratepayers assessed for job creation scheme benefitting state as a whole.
  • Defendants moved to dismiss on grounds that (1) Fuel Cell Energy had never tried to do business in DE, and (2) tariff had to be sustained unless there was no rational support for it, which there was because Delmarva would get RECs.

7/19/13

the argument 11 14 12
The argument (11/14/12)
  • Nominally, plaintiffs were represented by DE counsel, but Amber Abbasi of COA, who was “of counsel,” did the talking.
  • Defendants were represented by two attorneys plus a number of helpers who attended the hearing. (Show of force)
  • Amber took up perhaps 20% of the 2-hour hearing, the defendants’ attorneys 60%, and the judge 20%.
  • No action for past 8 months, and case probably won’t be resolved for years. Look for:
    • Dismissed (both issues), appeal . . ., OR
    • Not dismissed, answers & discovery, more arguments, decision, appeal . . .

7/19/13

dnrec hearing
DNREC hearing
  • One of the Bloom fuel cell installations was to be built in the Coastal Zone, south of New Castle and close to the Delaware River. This meant a CZ permit would be required, based on showing that environmental effects of the project would be acceptable, with more than offsetting economic benefits.
  • John attended the DNREC public hearing (March 2012), offering oral comments and submitting documents in opposition to the application. Pointed out missing exhibit re flora and fauna.
  • No indication that DNREC seriously considered his points. A CZ permit was issued.

7/19/13

appeal
Appeal
  • John filed an appeal with the Coastal Zone Industrial Control Board. The Bloom Energy subsidiary and DNREC claimed that he lacked standing to do so, although the applicable provision of the CZA said “any person aggrieved” could appeal a final DNREC order.
  • Further document exchanges – a preliminary conference – a full day hearing before the CZICB – with John proceeding pro se. In addition to a good deal of wrangling about standing, both sides called witnesses at the hearing.
  • After all that, the Board abruptly ruled that John lacked standing rather than making a decision on the merits.

7/19/13

second lawsuit
Second lawsuit
  • Unwilling to let CZA appeal be dismissed for lack of standing, John retained an attorney and filed an appeal in Superior Court.
  • The only issue that could be appealed was standing, e.g., was he a “person aggrieved” under the CZA. His attorney predicted a win.
  • Lengthy briefs – judge ruled for appellees – John appealed to DE Supreme Court – no support & more money.

7/19/13

common theme
Common theme
  • In both lawsuit, defendants asserted procedural objections vs. responding on the merits – defense law 101
  • Advantages for defense – run up plaintiff’s legal costs and exhaust their patience, two bites at the apple, but also prevents issues from being resolved and sludges up the judicial system.
  • Standing was successfully asserted against 16 members of Sierra Club & Audubon in pending CZA challenge to the Delaware City refinery (NJ, June 17). Talk about poetic justice!

7/19/13

moral
Moral
  • Litigation is like war – costly, risky, and no assurance of victory.
  • Don’t go to court unless other options have been exhausted.
  • But having people who are willing to put themselves out there can help to keep public officials focused on “doing the right thing”. Thanks, John!

7/19/13

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