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Although A Petition For Temporary Restraining Order, Injunction Denied, Lawsuit To Prevent Construction of Dike Solar Farm Ongoing

Following the announcement of Judge Will Biard’s decision to deny Cynthia Martin’s request that Hopkins Energy LLC and Hopkins County be issued a temporary restraining order and temporary injunction to halt construction of a large scale solar project in Dike, KSST reached out to the parties involved in the lawsuit.

Representatives for all three parties – plaintiff Martin and defendants Hopkins Energy, LLC, and Hopkins County – each provided a statement.

Robert S. Davis, attorney and senior partner at Flowers Davis PLLC, submitted the following statement on behalf of Hopkins County:

Hopkins County agrees with the Court’s decision to deny Cynthia Martin’s Application for Temporary Restraining Order and Temporary Injunction. A plaintiff like Ms. Martin is entitled to an injunction only when she has a probable right to recover, a probable, imminent, and irreparable harm, and no adequate remedy at law.  The Court found that Ms. Martin’s alleged injury is too remote and speculative to warrant an injunction. Hopkins County agrees. Now that the injunction has been denied, Hopkins County looks forward to vigorously defending itself in this lawsuit.

Kevin Phelan, ENGIE North America Communications, issued the following statement on behalf of Hopkins Energy LLC:

Hopkins Energy LLC (Hopkins Energy Solar Project) believes the court made the correct decision on the requests for a temporary restraining order and a temporary injunction and looks forward to continuing to responsibly plan for design, permitting, and preparation for construction to continue. 

Out of respect for the judicial process and all of the parties involved we do not comment on details of pending litigation. 

The Hopkins Energy Solar Project complies with all local, state and federal law, ordinances and other regulatory requirements and will continue to complete that process in advance of construction.  

The Hopkins Energy Solar Project aims to be a good long-term participant and neighbor in the Dike community and wider Hopkins County area.  The development process which commenced in 2018 has included some nine public hearings as well as Townhall meetings and numerous direct community engagement activities. We are proud of the economic benefits the project will bring to the county, local school districts and the Dike community at large. We will always strive for an open, respectful, transparent and fact-based dialogue.

Joanne Hatton, attorney and counselor with Braun & Gresham Attorneys at Law, submitted the following statement on behalf of Cynthia Martin:

This recent order was only addressing the issue of a temporary restraining order and an injunction. Judge Biard stated in correspondence to the attorneys that the evidence and arguments did not warrant a temporary restraining order or an injunction at this time. We believe this may be because ENGIE’s lawyers represented in the hearing that the plan now was that no work will commence until sometime in September. This order does not speak to the merits of the case, which will be determined at trial. The primary issue here is that the Hopkins County Officials did not follow the law, did not properly inform the community and unlawfully approved an agreement to give a tax abatement to a large solar power plant company without any due diligence to protect the community. All evidence we have indicates the County officials accepted the first agreement proposed by the solar company with no negotiation and without requiring the solar power plant provide any information about the possible impacts to surrounding landowners or roadways.

There are numerous requirements for tax abatement agreements under the Local Government Code and the Texas Tax Code enacted by the Legislature to protect the public. The agreement between the county and the solar power plant company does not contain these required terms. ENGIE’s lawyers claimed at the hearing that the agreement was not required to comply with these terms because the agreement is a “grant” and not a tax abatement. The agreement between the solar power plant company and the county provides that the solar company will pay the taxes each year and then within thirty days the county will give all the tax money back in the form of a “grant.” We are confident a court of law will find that this type of scheme does not constitute a grant, but rather an abatement and that the solar power plant must comply with the requirements put in place by the Legislature to protect the public. We also believe a court of law will find that the County did not have the authority to grant either an abatement or a grant at the time they entered into the agreement with the solar power plant company and that, if the County wishes to enter into such an agreement they must give proper public notice and allow the people of the community to be heard.

Our client is not opposed to solar energy, quite the opposite. However, it is apparent that the location of this extremely large project, which will contain a sea of nearly one million solar panels in a small, unincorporated town, next to county roads that already experience flooding, is not the proper place. A water engineering study completed by Aqua Strategies found that the flow of the water off the nearly one million solar panels will cause water that otherwise would have moved across the ground in sheets to instead be concentrated the way water flows off un-guttered roofs, redirecting and concentrating the flow of water. The study also found that the project is anticipated to expand the FEMA floodplain by an unknown amount and recommended that additional analysis is required. In order to appease fears of flooding, ENGIE has claimed that they are required to submit a storm water run-off plan to TCEQ, but they are simply required to file notice stating they have such a plan on file. In the name of “green energy,” this solar company is building a solar power plant in the middle of a tiny unincorporated town, clear cutting large areas of post oak forest and spraying Round Up over the project area, which consists of over 1,500 acres. While our client is attempting to protect her property and the community of Dike, Texas, Hopkins County is a hotbed of these kinds of projects right now and it appears the Commissioners are simply rubber-stamping project after project for these companies without doing any due diligence to protect their constituents.

Reinvestment zone for Hopkins Energy LLC as proposed in December 2020

Author: Faith Huffman

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