What I am wondering is whether Bloom has a basis for bringing a counterclaim against the plaintiffs' attorneys? The plaintiff, John Nichols, and his attorneys (an organization called Cause of Action) are described in various news stories as "representing" the Danbury, Conn.-based fuel cell manufacturer, FuelCell Energy. I know FuelCell Energy and I would be genuinely stunned if it got in bed with an injustice collector like Nichols. And make no mistake about it. Nichols has all the trappings of a "vexatious litigant."
A few days before filing the federal lawsuit, Nichols lost a related challenge he had filed against Bloom Energy's Delaware deal with the state's Coastal Zone Industrial Control Board. Nichols appears to have adopted a classic "burn the earth" litigation strategy, which is precisely why I can't believe FuelCell Energy would willingly associate itself with this lawsuit. Did FuelCell Energy really get involved with this guy? Has anyone seen the actual complaint? I would like to confirm that FuelCell Energy is actually a part of this litigation. If it is, I have a lot to say about it. If it isn't, I have a lot to say about that too.
UPDATE
I finally found the complaint. The action was brought under the Commerce Clause, which is why I thought it was (and think it is) a loser. The Commerce Clause prohibits discrimination against interstate commerce, but it does not prevent a state from promoting intrastate commerce. The Bloom law is an economic development program, which is why Bloom needs to build a factory in Delaware. If FuelCell Energy wants to build a factory in Delaware, it will be able to participate in the amended RPS. There is nothing preventing FuelCell Energy from doing precisely this and thus there is no violation of the commerce clause. Granted, the U.S. Supreme Court has yet to rule definitively on the constitutionality of economic development programs, but I would be surprised if the Court chose this case to strike down all state and local government economic development. The facts are wrong.
The facts are nonetheless tragic, primarily because FuelCell Energy has indeed put its name on this complaint. I am stunned - and because I work in the fuel cell industry - deeply saddened. FuelCell Energy's ludicrous attempt to derail Bloom Energy's expansion to the East Coast will have very nasty consequences for this industry. More soon . . .
