Jacobmouth Environmental Lawsuit: Consent Order and Rights Claims

Ten Lowell residents sued the Massachusetts Department of Environmental Protection and Markley Group LLC in April 2026 to block the expansion of a large data center in their neighborhood, and the Lowell data center lawsuit asks a state court to vacate both the air quality permit MassDEP issued in July 2025 and a later consent order that let construction begin while an administrative appeal was still pending. The case, Jacob v. Massachusetts Department of Environmental Protection, was filed April 27, 2026, in Middlesex Superior Court under docket 2681CV01107.¹

What the Permit Would Allow

The facility is a 352,000-square-foot data center on a 14-acre site at One Markley Way, owned and operated by Markley Group LLC, whose president is Jeffrey Markley. It sits in the Sacred Heart and Back Central neighborhoods, both designated environmental justice populations by the Commonwealth. The census block group where the facility is located ranks in the 97th percentile nationally for nitrogen oxide emissions and in the 90th percentile for the proportion of adults with asthma.² The site borders homes, a public park with a ballfield, and stands one block from a public preschool. Some of its infrastructure is less than 100 feet from houses.³

On April 28, 2025, Markley applied to MassDEP for a non-major comprehensive plan approval to install and operate 27 diesel backup generators and 16 cooling towers.⁴ The generator fleet is a mix of Caterpillar models from 1,000 to 3,000 kilowatts, with some already installed, others previously permitted, and eight newly proposed.⁵ The facility stores roughly 160,000 gallons of diesel fuel on site.⁶

MassDEP approved the plan on July 3, 2025, without conducting a cumulative impacts analysis or requiring review under the Massachusetts Environmental Policy Act.⁴ The permit authorizes emissions of up to 42.92 tons per year of nitrogen oxide and 3,276 tons per year of carbon dioxide equivalents from generator operations.² Residents in the area have raised concerns for over a decade about pollution, noise they compare to a jet engine, dust, odors, heavy truck traffic, and mist from the cooling towers that they say coats nearby properties and could carry legionella bacteria.⁶

The Consent Order Residents Say They Were Never Told About

After residents filed an administrative appeal of the permit in July 2025, MassDEP and Markley entered an administrative consent order on September 29, 2025, authorizing the company to “proceed promptly” with installing eight new diesel generators while that appeal remained pending.⁷ The plaintiffs say they were not notified. According to their attorneys, they only learned of the order in January 2026, after noticing construction at the site and asking Markley directly, which then provided a copy.⁸ A cease-and-desist letter from the plaintiffs’ lawyers in February 2026 called the consent order an “improper workaround” that violated regulations requiring all parties to an appeal to agree to such orders.⁹

Who Filed the Suit

The plaintiffs are ten residents organized as Honest Future for Lowell, a group that formed in the Sacred Heart neighborhood after the expansion plan was approved. Named plaintiffs include Jacob Fortes, whose home sits at the data center’s fence line, and Mary Wambui.²³

The group’s advocacy also helped prompt the Lowell City Council to unanimously approve a one-year moratorium on new data center development and expansion on March 10, 2026, with a possible 180-day extension.¹⁰

The Legal Claims

The complaint names both MassDEP and Markley Group as defendants and rests on several overlapping theories.

Administrative Procedure Act violations. The plaintiffs allege MassDEP committed legal and factual errors in approving the air permit, acted arbitrarily and capriciously, and dismissed their administrative appeal without giving them an opportunity to present evidence.³
State pollution control and climate laws. The complaint argues the permit is inconsistent with Massachusetts pollution control statutes and that MassDEP failed to consider alternatives to diesel generation, in violation of state climate laws and policies.¹¹
Environmental justice laws. Because the site is in a state-designated environmental justice community, the plaintiffs contend MassDEP should have applied heightened scrutiny and conducted a cumulative impacts analysis before approving the permit.⁷
Constitutional right to a clean environment. The suit invokes provisions of the Massachusetts Constitution securing the right to a clean and healthy environment.¹
Due process and the consent order. The plaintiffs argue the September 2025 consent order exceeded MassDEP’s authority and was executed without notice to the residents, violating their due process rights and the public’s right to notice and comment.³

The lawsuit asks the court to vacate both the air permit approval and the consent order, and to halt the data center expansion.

The Constitutional Question

The constitutional claim is the piece that sets the case apart from an ordinary administrative challenge. Massachusetts voters approved Article 97 of the state constitution in 1972, establishing that “the people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment.”¹² The provision was intended in part as a check on the conversion of conservation lands, and it declares the conservation of natural resources a public purpose.¹³

No Massachusetts court has yet recognized a private right of action under those environmental provisions. In Enos v. Secretary of Environmental Affairs (2000), the Supreme Judicial Court rejected a claim that Article 97 gave plaintiffs standing to challenge a decision under the Massachusetts Environmental Policy Act. In the 2019 federal case Hootstein v. Amherst-Pelham Regional School Committee, a U.S. District Court declined to read a private right of action into Article 97, though the judge noted the claim might need to be brought in state court rather than federal court.¹⁴ Filed in Massachusetts Superior Court, the Jacob case could be the vehicle for a state court to address that question directly.

Where the Case Stands

As of mid-2026, the case remains in its earliest stages, with only the complaint on file and no ruling from the court. The Columbia Law School Sabin Center for Climate Change Law has catalogued it in its global climate litigation database.¹⁵ Construction at the site proceeded under the consent order the plaintiffs are now asking the court to void.

1
Climate Case Chart. Jacob v. Massachusetts Department of Environmental Protection
2
Yale Law School. Clinic Lawsuit Challenges Data Center Expansion in Lowell, Massachusetts
3
Conservation Law Foundation. Lowell Residents File Lawsuit Challenging Data Center Expansion
4
Yale Law School. Environmental Justice Law and Advocacy Clinic – Data Center
5
The Lowell Sun. Markley Project Description From MassDEP
6
The Lowell Sun. Residents Sue MassDEP, Markley Group Over Lowell Data Center
7
Commonwealth Beacon. Lowell Residents Sue Data Center, State Over Air Quality Permit
8
News From the States. Lowell Residents Sue Data Center, State Over Air Quality Permit
9
Yale Law School. Cease and Desist Letter
10
BINJ. Can Massachusetts Avoid Data Center Distress Seen in Other States
11
Climate Case Chart. Jacob v. Massachusetts Department of Environmental Protection – Collection
12
Farmland Information Center. Article 97, Constitution of the Commonwealth of Massachusetts
13
Massachusetts Government. Article 97: An Act Preserving Open Space in the Commonwealth
14
State Court Report. Greening State Constitutions
15
Columbia Law School. Climate Litigation Updates