The Maine Supreme Judicial Court has cleared the way for a nuisance lawsuit against Maine Energy Recovery Co., the waste incinerator in Biddeford.

The state’s highest court ruled today that the York County Superior Court was wrong to dismiss the odor complaint of Mark Johnston, a former mayor of Saco who lives across the river from the plant.

Johnston claims the odor is a private nuisance because he cannot spend time outdoors or even leave windows open in his home. Maine Energy had argued Johnston did not have legal grounds to sue, in part because the state regulates operation of the plant.

The Supreme Judicial Court said Johnston has legal standing to file the complaint and that the state’s regulation does not mean the incinerator is immune to private nuisance claims.

“We’re excited,” Johnston said. “We have been patiently waiting nine months for this.”

Johnston said he plans to move forward in court, although the suit may now become a class action. “We do have other people wanting to join,” he said.

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