State Supreme Court passes on ethanol plant litigation

The lengthy legal battle waged by opponents of a proposed $185 million ethanol plant in Webster County appears to have come to an end.

In late February, the Missouri Supreme Court denied a request from Citizens for Groundwater Protection - a group of county residents who sued Mount Vernon-based Gulfstream Bioflex Energy LLC in October 2006 - to hear the case on appeal.

"My reaction was disappointment," said Springfield attorney Bill McDonald, who represents Citizens for Groundwater Protection. "I thought that the court should have taken the case for several reasons, but one of the most important is to clarify the burden of proof standard on preconstruction injunctive relief."

McDonald has argued that the "certainly and inevitably" burden of proof applied by the trial judge - Boone County Judge Frank Conley - was legally obsolete. But in December, the Missouri Court of Appeals upheld Conley's ruling that construction of the corn-based ethanol plant on 252 acres between Rogersville and Fordland could proceed.

From the outset, the plant's foes have passionately argued that the proposed facility, which is capable of producing 100 million gallons of fuel-grade ethanol annually, would deplete their groundwater supply and pollute area waterways. But the courts have consistently ruled in favor of the company, which is now pursuing a $25,000 bond posted by the plaintiffs that was later ordered released by Conley. The Court of Appeals in December agreed with GBE that Conley prematurely released the bond in 2007 and remanded that portion of the case.

"The trial court is going to determine what our damages were for the delay that they caused us," said Springfield attorney Craig Lowther, who represents GBE.

Lowther, with Lowther Johnson Attorneys at Law LLC, told Springfield Business Journal in December that the state Supreme Court was under no obligation to hear the case on appeal, and he suggested that it lacked "novel or unique issues" that warranted the high court's attention. Lowther remains critical of the plaintiffs' unwillingness to accept defeat.

"They were incapable of processing the scientific information, and they only saw what they wanted to see," he said. "When you do that, it makes it a little tougher to make good decisions. That's what happens to people a lot of times in lawsuits."

Bu McDonald, with McDonald & Associates LLC, said GBE officials have likewise acted on emotion. He said they should have abandoned the project after realizing that the commodity they want to produce hasn't proven itself as a viable alternative fuel.

"Corn-based ethanol has taken massive hits in the eyes of the public since this litigation began," McDonald said.

Lowther was unable to provide details about the plant project's timeline, but he said his client is free to move forward with construction.

"They could start building tomorrow if they wanted," he said.

McDonald said there are no signs that the site is being prepped for construction.[[In-content Ad]]