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Town of Barnstable v. O'Connor

ELR Citation: 45 ELR 20097
Nos. 14-1597, -1598, (1st Cir., 05/18/2015)

The First Circuit reversed a lower court decision dismissing a lawsuit concerning a proposed offshore wind power generation facility in Nantucket Sound. Opponents of the facility—a town, an advocacy group, and several individuals and businesses in the area—sought to nullify the state's approval of a power purchasing agreement between a wind energy company and an electric company, claiming the state had violated the dormant Commerce Clause and the Supremacy Clause. The lower court dismissed after determining that the Eleventh Amendment precluded the assertion of federal court jurisdiction. It concluded that the relief sought by the opponents was retroactive, and thus outside the reach of the Ex parte Young exception to the Eleventh Amendment. But the appellate court disagreed. Most unconstitutional agency determinations will have occurred in the past by the time a lawsuit is brought; sovereign immunity does not necessarily prevent suits against such state actions when the alleged violation they spur is ongoing and no "raid on the state treasury" will result. The court therefore vacated and remanded the case.