The State of Connecticut faces significant federal antitrust liability from the Green Bank's anticompetitive conduct. Without proper state supervision, Connecticut has NO immunity from Sherman Act enforcement—exposing the state to treble damages from excluded private competitors.
If private competitors sue and win, damages are automatically tripled under federal antitrust law (15 U.S.C. § 15).
A common misconception is that state agencies are immune from federal antitrust laws. This is FALSE for quasi-public agencies like the Connecticut Green Bank.
Under North Carolina State Board of Dental Examiners v. FTC (2015), immunity is conditional and requires passing two strict tests. CGB fails both.
Without state immunity, Connecticut faces exposure to hundreds of millions of dollars in treble damages from multiple excluded private competitors across multiple programs (Solar MAP, RRES, NRES, SCEF) over 7+ years (2018-2025).
Conservative Estimate: If just a subset of blocked solar developers collectively prove $30-50M in lost profits → $90-150M in treble damages + attorney fees.
Full Exposure: If all excluded competitors (residential, commercial, and community solar developers) across all programs (RRES, NRES, SCEF, Solar MAP) over 2018-2025 sue → Liability could reach hundreds of millions of dollars.
This financial threat is the primary lever to move the Legislature and the Attorney General to action. Connecticut must act immediately to eliminate liability exposure before lawsuits are filed.
The Green Bank is a quasi-public agency, not a sovereign state entity. Under federal law, it must meet two strict tests to avoid antitrust liability. It fails both.
Requirement: The Connecticut legislature must have "clearly articulated" a state policy to displace private competition.
Legislative Intent: CGB was designed to catalyze private investment, not compete with or displace it.
Verdict: FAILS Clear Articulation Test
The statute authorizes CGB to support financing, not to monopolize it. "Leverage private investment" means attracting private capital, not displacing it with state-subsidized competitors. CGB's conduct is the opposite of what the statute authorizes.
"Simple permission to play in a market does not imply permission to monopolize it."
— FTC v. Phoebe Putney Health System, 568 U.S. 216 (2013)Requirement: A politically accountable state official must actively supervise anticompetitive conduct by market participants.
CGB Board (composed of market participants with financial interests) approves IPC no-bid contracts autonomously—with zero oversight from politically accountable state officials.
Verdict: FAILS Active Supervision Test
This is the precise scenario condemned in NC Dental: a board controlled by active market participants regulating their own industry without state supervision. Federal law requires a politically accountable state official to review and approve decisions that exclude competitors. Connecticut provides no such supervision.
"When a state board is controlled by active market participants, active supervision by the state is required."
— NC State Board of Dental Examiners v. FTC, 574 U.S. 494 (2015)The state is fully exposed to federal Sherman Act enforcement and private treble-damage lawsuits.
Under California Retail Liquor Dealers v. Midcal Aluminum, 445 U.S. 97 (1980), non-sovereign state actors must satisfy BOTH prongs to claim immunity from federal antitrust law.
Legislature must clearly express policy to displace competition
State official must review and approve anticompetitive conduct
CGB fails both prongs of the Midcal test. Connecticut has NO state action immunity and is fully exposed to federal antitrust enforcement under the Sherman Act.
Without state immunity, Connecticut faces liability from multiple sources under federal antitrust law.
The U.S. Department of Justice or Federal Trade Commission can bring civil enforcement actions.
DOJ/FTC enforcement does NOT require proof of damages—only anticompetitive conduct.
Any private company blocked from competing can sue under 15 U.S.C. § 15 for treble damages.
Actual Damages: Lost profits from projects they would have won
Treble Damages: 3× actual damages (mandatory under 15 U.S.C. § 15)
Attorney Fees: Recoverable by prevailing plaintiff
Costs: Court costs and expert witness fees
Assume multiple private solar developers collectively lost $50 million in profits from projects steered to IPC over 2018-2025:
And this is just ONE scenario. Multiple plaintiffs could file separate suits.
The CGB Board is controlled by active market participants—exactly the scenario that triggered antitrust liability in NC Dental.
"A state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal's active supervision requirement in order to invoke state-action antitrust immunity."
— NC State Board of Dental Examiners v. FTC, 574 U.S. 494, 505 (2015)Why the Court cared: When competitors regulate their own market, they have an incentive to exclude rivals and raise prices. Active state supervision is required to ensure they're acting in the public interest, not their private interest.
Because CGB's board is controlled by active market participants (renewable energy lawyers, private equity investors, union lobbyists), NC Dental requires that a politically accountable state official (e.g., DEEP Commissioner) must actively review and approve any decisions that exclude competitors.
Evidence shows: CGB Board approves IPC no-bid contracts autonomously, with NO DEEP review. This failure of active supervision eliminates state immunity.
What is Tying? Conditioning the sale of a desirable "tying product" on the purchase of a separate "tied product."
"Tying aftermarket services to equipment sales violates the Sherman Act when the seller has market power."
— Eastman Kodak Co. v. Image Technical Services, 504 U.S. 451 (1992)What is Monopolization? Willful acquisition or maintenance of monopoly power through exclusionary conduct.
"The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power."
— United States v. Grinnell Corp., 384 U.S. 563 (1966)Connecticut's conduct meets all the legal elements of illegal tying (§ 1) and monopolization (§ 2). Without state immunity, these violations expose the state to federal enforcement and private lawsuits.
Beyond the core tying and monopolization claims, CGB's conduct implicates multiple additional antitrust theories recognized by federal courts.
Antitrust liability depends on properly defining the relevant market. Here, multiple distinct markets exist where CGB/IPC hold monopoly power:
100% Market Share: IPC finances 100% of Solar MAP projects from 2020-2025 (Rounds 3-5). No other financier has been awarded a single project.
Barriers to Entry: Private competitors face insurmountable barriers: (1) No access to ratepayer subsidies; (2) CGB controls technical assistance gatekeeping function; (3) Municipalities locked into Solar MAP pipeline by sunk-cost fallacy after "free" site assessments.
Legal Theory: A monopolist controlling an "essential facility" (a resource competitors must access) violates § 2 if it refuses competitors access on reasonable terms.
Result: Solar MAP's technical assistance functions as an "essential facility" that CGB leverages to monopolize downstream financing markets. Private developers are foreclosed from competing because they cannot access municipal customers without navigating CGB's gatekeeping function — which conditions access on using IPC financing.
Legal Theory: Pricing below cost to drive out competitors violates Sherman Act § 2 when paired with market power and intent to monopolize.
| Project/Market | IPC Rate | Private Market Rate | Subsidy Differential |
|---|---|---|---|
| Manchester Solar MAP | $0.145/kWh | $0.084/kWh (private bid) | 73% above market |
| Durham SCEF | $0.132/kWh | $0.089/kWh (private bid) | 48% above market |
| RRES (Residential) | 2.99% APR | 6.99% APR (market rate) | 57% below market |
Economic Reality: IPC's rates are not sustainable without ratepayer subsidies. CGB uses $24-26 million per year in mandatory electric charges to offer artificially low financing that private lenders — operating without subsidies — cannot match.
Legal Theory: Agreements among competitors to refuse to deal with certain parties are per se illegal under Sherman Act § 1.
CGB (state-created entity) + IPC (CGB-created nonprofit) + municipalities (customers steered by CGB) = coordinated refusal to consider financing from private solar developers not affiliated with IPC.
"Concerted refusals to deal are per se violations of the Sherman Act when they serve no purpose other than to harm competition."
— Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985)Legal Theory: Clayton Act § 8 prohibits a person from serving as director of two competing corporations if certain size thresholds are met.
| Individual | CGB Role | IPC Role | Conflict |
|---|---|---|---|
| Mackey Dykes | Board Member | Board Chair | Voted to award IPC sole-source contracts |
| Bert Hunter | Executive VP & CIO | Board Member | Participates in both CGB financing decisions and IPC operations |
Competitive Relationship: CGB and IPC operate in the same "financing services for renewable energy projects" market. CGB directly competes with private lenders (via Smart-E loans, C-PACE), while IPC finances the same project types (Solar MAP, SCEF). The dual roles eliminate competitive tension and facilitate monopolization.
Jurisdictional Requirement: Sherman Act applies only to conduct affecting interstate commerce. CGB's conduct easily meets this threshold.
Supreme Court Standard: "Even local restraints affect interstate commerce if they interfere with the flow of goods across state lines or impact out-of-state competitors." — Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)
Connecticut faces antitrust exposure under multiple independent legal theories, each of which standing alone would support federal enforcement or private litigation:
Clayton Act § 8: Interlocking directorates (Mackey Dykes, Bert Hunter) violate prohibitions on directors serving competing entities.
State Immunity Defense: Will be rejected under Phoebe Putney (clear articulation) and NC Dental (active supervision) — CGB fails both prongs of Midcal test.
Multiple claims + no immunity = catastrophic exposure. Connecticut should settle or reform IMMEDIATELY.
The legal exposure is real, immediate, and fixable. Connecticut must act NOW to eliminate antitrust liability before federal enforcement or private lawsuits begin.