MARISSA – Nine people among millions whose homes have run on power from Prairie State Generating have complained in court about the cost in 11 years, and their claims were dismissed.
U.S. District Judge Rebecca Pallmeyer of Chicago dismissed a potential class action in 2015, granted leave to amend, and dismissed the second version in 2016.
The question of cost came up in a current Sierra Club suit seeking to shut Prairie State down.
The club sued in March, claiming Prairie State operates without an air quality permit.
Prairie State moved to dismiss the complaint in May, claiming state law provides that it can operate without a permit while it awaits approval of its application.
Prairie State argued that it provides affordable, reliable, and sustainable electricity to about 2.5 million families across the Midwest and Mid Atlantic.
Sierra Club responded that “the purportedly excessive cost of electricity generated by the plant has been the subject of a class action lawsuit.”
In reply, Prairie State cited Pallmeyer’s case, which involved municipal electricity in Batavia.
Batavia and three other cities jointly bought electricity from Indiana Municipal Power, one of Prairie State’s nine owners.
Prairie State began generating in 2012.
Nine Batavia residents filed a class action complaint against Indiana Municipal Power at Kane County Circuit Court in 2014.
They claimed they paid too much because Indiana Municipal Power negligently misrepresented facts about Prairie State’s construction and operation.
They also sued engineering firms Skelly and Loy of Pennsylvania as a coal mine consultant and Sargent and Lundy of Illinois as a power plant consultant.
They didn’t sue Prairie State, but they named it a respondent in discovery.
Defendants removed the complaint to district court, claiming plaintiffs sued Sargent and Lundy solely to defeat federal jurisdiction over the other defendants.
They also claimed the national Class Action Fairness Act required federal jurisdiction because Sargent and Lundy was not a significant defendant.
They moved to dismiss the complaint for failure to state a claim.
Plaintiffs moved to remand the complaint to Kane County, and Pallmeyer held a hearing.
Plaintiff counsel Michael Duffy of Chicago said Sargent and Lundy knew their information would be relied upon.
He called them a catalyst and said, “They started it in a lot of ways.”
If not for their recommendations, he said, plaintiffs wouldn’t pay hideous increases.
Agency counsel William O’Neil of Chicago said, “The complaint didn’t contain a single allegation regarding what it was that Sargent and Lundy said that was false.”
He said there was no communication between them and the city.
Duffy said the Class Action Fairness Act provided an exception for local controversies.
“This is not a national class action. This is a tiny town,” he said.
Pallmeyer denied remand and dismissed the complaint without prejudice.
She found defendants owed a narrow duty only to those who might foreseeably rely upon misrepresentations as opposed to those who might be impacted by them.
She found anyone who makes a misrepresentation is liable only to those for whose guidance he knows the information is to be supplied.
“Even if plaintiffs are correct as a matter of civics or political theory that a municipality exists for its citizens, it does not follow that citizens may hold defendants liable in tort for a duty the defendants may have owed to the municipality,”she wrote.
She found Batavia itself might not sustain a negligent misrepresentation claim because it would have to allege false statements of material fact.
“Opinions and projections about future events of the sort plaintiffs allege here, opinions and projections about the future costs and viability of PSEC or about the necessity of Batavia's approving the project, are generally not considered statements of material fact,” she wrote.
Pallmeyer granted leave to amend the complaint and plaintiffs did so, adding information not previously available that Sargent and Lundy attended a meeting in Batavia in 2004.
Defendants moved to dismiss, and Pallmeyer granted it.
“Plaintiffs do not allege that they themselves actually viewed or received the presentation or took any action in reliance upon it.” she wrote.
She found it unreasonable to infer that citizens have the same knowledge as elected representatives about every decision for which they will be expected to bear the costs.
In the current Sierra Club case, Magistrate Judge Reona Daly of Benton set bench trial in May.
She stayed discovery by request of the parties pending her decision on a motion to dismiss.
Owners of Prairie State Generating Company
American Municipal Power in Columbus, Ohio
Illinois Municipal Electric Agency in Springfield
Indiana Municipal Power Agency in Carmel
Kentucky Municipal Power Agency in Paducah
Missouri Joint Municipal Electric Utility in Columbia
Northern Illinois Municipal Power Agency in Rochelle
Prairie Power in Springfield
Southern Illinois Power Cooperative in Marion
Wabash Valley Power Alliance in Indianapolis