Superior Court Judgment Favors Solar Industry

Suffolk Superior Court Judge Edward P. Leibensperger issued his tightly reasoned 17 page decision late last week ; the full text was received today . He ordered the Massachusetts Board of State Electrical Examiners (BSEE) to declare that licensed general contractors in the state “may advertise and contract for PV System installations and sub contract with electricians” in effect restoring the pre 2009 harmony of trade cooperation under Massachusetts laws and regulations.

The BSEE made an unfortunate decision in 2009 to pirate all solar work for electricians only and made it worse by wasting taxpayer dollars in numerous enforcement actions and investigations of licensed Solar General Contractors the last three years.

The judge in allowing for summary judgment in favor of the plaintiffs from the solar industry also denied the counter motion by the BSEE and intervenors representing the International Brotherhood of Electrical Workers and two Electrical Trade Associations to declare our suit without merit. This means that even if the BSEE and the intervenors choose to appeal the decision, tying up Superior Court time to seek a full trial, the BSEE cannot continue its harassment of the solar industry during the process. A summary judgment is very rare. The arguments for the solar industry presented by the attorneys and students of the Emmett Environmental Law and Policy Clinic of Harvard Law School were elegant and impregnable.

Here are a few excerpts from the judge’s decision:

‘ the level of deference accorded to an administrative agency is reduced when the “case does not involve a contemporaneous and consistent administrative interpretation of the statute “ .. As mentioned..prior to 2009 the Board had not charged a non electrician with unlicensed practice on the basis that he advertised or contracted the installation of a PV System even though PV Systems have been around since the 1980s.” “ Finally the issue here is one of public significance because it affects the ability of all general contractors , such as Plaintiffs, to earn a livelihood with respect to performing PV installations.” 

‘Accordingly , the boards interpretation must be rejected because it is “is not supported by the language of the statute, the context from which it arose, any consistent administrative interpretation, or the legislative policy on which the statute was based” “there is nothing to suggest that the Legislature intended to grant electricians such a legal monopoly” Now three separate Superior Court Justices since 2010 have moved this case through orders and decisions that reflect a strict interpretation of the law and common sense . They support the merits of the Solar industry’s complaint that the BSEE exceeded its statutory authority by restraining the solar trade. Will the BSEE and the intervenors pursue an appeal? They have until August 19th. Will legislators and the administration support a common sense solar contracting license this Fall that is inclusive and progressive? Stay tuned to this website.

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