Settle with power plant builder, Brockton mayor says

Activists have been trying to stop a plan to build a power plant in Brockton for nearly a decade. Mayor Bill Carpenter, however, believes the city will lose its last fight<span channel="!BostonGlobe/SO2_REG-01">, and urges the City Council to settle the case</span>.617-828-3760

BROCKTON — A decade-long fight to build a power plant in Brockton has boiled down to the issue of waste water and a $68 million federal lawsuit seeking to force the city to provide it.

The applicant, Advanced Power AG, needs millions of gallons a day to cool the proposed facility on Oak Hill Way, or it can’t open. So far, the city has refused to sell.

Mayor Bill Carpenter, who campaigned as a power plant backer, says he thinks it’s probably time to settle the case. His suggestion followed a pair of decisions last week by the state’s Supreme Judicial Court that struck blows against both sides in the dispute, rejecting Brockton’s appeal of the plant’s permit but also Advanced Power’s claim that it was entitled to use drinking water for its needs.

Carpenter said he would know more after a Sept. 16 status conference in US District Court in Boston.

Brockton has spent $1.25 million fighting the Swiss company seeking to build a 350-megawatt, gas-fired plant in an industrial park on the city’s south side, Carpenter said.

That cost will jump to more than $2 million if the federal case goes forward, he said. If the city loses the case, he said, it could be forced to pay “tens of millions” of dollars in damages and attorneys’ fees, and the plant would still go in. If the plant opens, the city will earn millions in revenue, he said.

“We are 0 for 11” in court cases, Carpenter said. “And there are no more appeals left.”

Brockton’s 11-member City Council is united in its opposition to the plant, which many members say is a health and safety risk.

And any settlement that Carpenter might negotiate would have to be approved by a majority of the council members.

As far as Carpenter is concerned, councilors are taking a “head-in-the-sand” approach when city attorneys say there is very little chance of prevailing.

The lawyers “recommend we seek a settlement,” said the mayor. “The message I’m getting from attorneys is there will be a power plant in Brockton.”

City Council president Robert Sullivan said the state’s highest court was right to deny Advanced Power the use of potable water, especially when residents all over the city have said they don’t want the plant.

“You don’t put a price tag on health and safety,’’ said Sullivan, also an attorney. “As a husband and father, my stance is in opposition. It has been, and it will continue to be.

“It’s short-sighted to think there will be a pot of gold at the end of the rainbow,” he added.

Ward 3 City Councilor Dennis Eaniri said he has no interest in settling anything: “And I don’t see the council changing its stance, either.”

Certainly not City Councilor Paul Studenski of Ward 4, where the plant would be located.

“The health item is what really has me going,” Studenski said. “We already have double the state average for asthma and breathing problems in young people who live in that area.”

Carpenter said he would negotiate a good and fair agreement that would not involve any payouts of cash. If the case isn’t settled, and the city loses, he said it will pay out millions at a time the school department is $5 million in the red and there is a shortage of police officers and firefighters.

Other opponents, like the grass-roots group Stop the Power, said there is no need to take any action because Advanced Power does not have an available, approved cooling water supply for its facility and can’t proceed.

And while the federal case asks the court to demand that the city sell treated effluent, Stop the Power attorney Paul Glickman has said that the federal court can’t force the city to do anything.

In a statement, Stop the Power characterized the federal case, and Carpenter’s “hyped and exaggerated” estimates for the cost of defending it, as foolish.

“Brockton Power should now read the handwriting on the wall and dismiss the suit,’’ a case it couldn’t win “in court or before the public,” it said.

Attorney Siobhan Mee, a partner at the Boston firm Bingham McCutchen, which represents Advanced Power, said a central element of the case is the claim that city officials illegally conspired to starve the project by denying it access to any source of cooling water.

That was a “contrived, Catch 22 denial” of both potable water and treated waste water, she said.

So now there are choices, Mee said: Brockton can agree to sell the treated waste water and earn millions in new revenue, or the federal court can order it, and the city will pay dearly “for its unconstitutional, illegal, and discriminatory treatment of the project.’’

Sullivan, the city council president, said he is standing firm.

“It’s a sad situation where there would be bullying, or perceived bullying,’’ he said. “When you are elected to serve the people of the City of Brockton – whether city councilor or mayor — you represent their interests and you are their voice.”