Cape Wind Keeps Spinning

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SandBar 9:4, October, 2010 Recommended citation: Nicholas Lund, Cape Wind keeps Spinning, 9:4 SandBar 4 (2010). Cape Wind Keeps Spinning Nicholas Lund, J.D. More than nine years after it was originally proposed, an offshore wind project planned for Massachusetts’ Nantucket Sound has cleared several more regulatory hurdles and won another round of litigation, bringing it closer than ever to the start of construction. Cape Wind Associates, LLC (Cape Wind) won final approval from the Department of the Interior in April and from the Federal Aviation Administration a month later. In August, the Mass. Supreme Judicial Court ruled 4-2 that the state’s Energy Facilities Siting Board (EFSB) can authorize local permits despite opposition from local groups. If Cape Wind can win final approval from the state Department of Public Utilities (DPU), construction on the 130-turbine offshore farm could begin before the year is out. Background In July 2001, Cape Wind Associates announced its intention to construct the country’s first offshore wind farm on Horseshoe Shoal, in federal waters surrounded by Cape Cod, Nantucket, and Martha’s Vineyard. Cape Wind would generate more than 420 megawatts, enough to provide nearly half the electricity needs for Cape Cod and the islands. Cape Wind’s large footprint - plans originally called for 170 turbines covering 25 square miles of ocean - and unique coastal location have resulted in fierce opposition from some local groups. Environmental groups claim the project will harm the Sound’s environment and wildlife. Coastal towns and citizens (most famously the late Sen. Ted Kennedy) take issue with the potential aesthetic impacts of the farm. Several local Indian tribes claim that Horseshoe Shoal is sacred ground and that the project would obscure their view of the rising sun during ceremonies. However, with support from an equally varied base including Massachusetts Governor Deval Patrick and groups like the Massachusetts Audubon Society and the American Lung Association, Cape Wind has survived numerous lawsuits and regulatory hurdles. In the first round of litigation, in August 2003, the First Circuit determined that because Cape Wind could be constructed more than three miles offshore the federal government, not the Commonwealth of Massachusetts, had exclusive jurisdiction to permit the construction of a data tower.1 Later that year, Cape Wind won again when the U.S. District Court for the District of Massachusetts denied an attempt by Cape Wind’s most active opponent, The Alliance to Protect Nantucket Sound (Alliance), to challenge the U.S. Army Corps of Engineers’ (Corps) authority to issue a permit under § 10 of the Rivers and Harbors Act.2 The District Court’s decision was affirmed by the First Circuit in 2005.3 Green Light from the Interior Department In April 2010, Cape Wind scored another major victory when Interior Secretary Salazar announced that the Minerals Management Service (MMS)4 would offer a commercial lease and associated easement to Cape Wind Associates for the construction of the wind farm. The decision marked the end of nearly a decade of environmental review required under the National Environmental Policy Act (NEPA), which requires impact statements whenever a “major Federal action significantly affecting the quality of the human environment” is proposed.5 Triggered by federal involvement in the permitting of Cape Wind, NEPA required first the Corps then the MMS6 to create a comprehensive Environmental Impact Statement (EIS) outlining the various environmental impacts of Cape Wind, as well as several alternative projects. The EIS was finalized in January of 2009, and the MMS next decided whether to issue a final approval. That approval came with the issuance of a Record of Decision in April. The MMS decided to approve the project with a few modifications. Secretary Salazar ordered the number of turbines reduced from 170 to 130, reconfigured the layout so the turbines were further away from Nantucket, and required new color-schemes and lighting schedules to improve visibility for humans and birds. The announcement from Secretary Salazar is considered “by far the most important decision for [Cape Wind].”7 FAA Approval Less than a month later, Cape Wind cleared another hurdle when the FAA declared that the project will not significantly interfere with planes or radar. The May decision was the fourth time the FAA had ruled on the project, the first three decisions lapsing after 18-month delays. The FAA changed its rating from “presumed hazard” to “no hazard” after Cape Wind agreed to pay $1.5 million to the agency for radar modifications made to ensure that radar connections between planes and the FAA will not be disrupted by the turbines. MA Court Case Cape Wind’s most recent victory came in the courtroom, where Massachusetts’ highest court ruled that the EFSB could issue nine important local and state permits. The decision allows Cape Wind to acquire the permits in one stop from the EFSB rather than dealing individually with local governments and organizations, some of which are staunchly opposed to the project. The issue came to a head in 2007, when the Cape Cod Commission (Commission) denied approval of Cape Wind’s development of regional impact (DRI) report on the two transmission lines needed to connect the wind farm to the mainland. Instead of appealing that decision, Cape Wind applied to the EFSB under a state law allowing that group to issue composite local permits when an electric company cannot meet standards set by a local agency.8 The Commission and the Alliance (Plaintiffs) sued when the EFSB approved the project in May 2009, and the suit was joined with an appeal from a state Superior Court decision affirming EFSB’s jurisdiction over the project.9 The plaintiffs relied on the public trust doctrine for their first major argument, claiming that the EFSB could not authorize transmission lines across state tidelands held in trust for the public without express authority from the legislature. The court disagreed, however, ruling that EFSB’s enabling legislation gave them proper authority to act in place of the state Department of Environmental Protection and administer public trust rights. Next, the plaintiffs argued that the EFSB erred in limiting its focus to the impacts of the transmission lines rather than the entire project. Again the majority sided with Cape Wind, ruling that the EFSB could only consider impacts of facilities to be located within state waters. To allow the EFSB to consider impacts of the wind farm itself and therefore potentially deny a necessary permit based on those impacts, the court ruled, would give the state agency improper authority over a primarily federal project. Regardless of any local opposition to Cape Wind, the majority ruled, local groups cannot control the fate of the project by denying a minor, related permit. Two judges dissented on these points. Justices Marshall and Spina wrote that allowing the EFSB to grant transmission lines across state tidelands without what they saw as legislative authority sets “a dangerous and unwise precedent” with “far-reaching consequences.”10 Finding a lack of express authority for the siting board to exercise such authority, the dissenters wrote that they would reverse on this point alone. Next, using the recent BP oil spill in the Gulf of Mexico as an example, the dissenting justices warned that a state’s failure to consider all the impacts of an offshore energy project, even if located in federal waters, can have “catastrophic effects.”11 An End in Sight? Potentially, few hurdles remain before Cape Wind can become the nation’s first offshore wind farm. What may be the final regulatory battle is being fought this fall as the state DPU determines whether a pending 15-year deal between Cape Wind and utility company National Grid would result in acceptable electric rates for consumers. Opposition groups including the Alliance vow to challenge a positive DPU ruling in court and have already sued to challenge other aspects of the project, hoping to keep the project delayed. The DPU is expected to make a ruling in November. Endnotes 1. Ten Taxpayers Citizen Group v. Cape Wind Associates, LLC, 278 F.Supp.2d 98 (1st Cir. 2003). 2. Alliance to Protect Nantucket Sound, Inc. v. United States Dept. of the Army, 288 F.Supp.2d 64 (D. Ma. 2003). For a detailed analysis of the District Court opinion, see Stephanie Showalter, Cape Wind Associates Wind Round Two, The Sandbar 2:4, 1 (2004) available at: http://nslgc.olemiss.edu/SandBar%20PDF /sandbar2.4.pdf. 3. Alliance to Protect Nantucket Sound, Inc. v. United States Dept. of the Army, 398 F.3d 105 (1st Cir. 2005). For more on the First Circuit opinion, see Jeffrey Schiffman, Wind Farm Survives Another Challenge, The Sandbar 4:1, 1 (2005) available at: http://nsglc.olemiss.edu/SandBar%20PDF/sand -bar4.1.pdf. 4. The agency has since changed its name to the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE). 5. National Environmental Policy Act, 42 U.S.C. § 4332(C) (2010). 6. The Energy Policy Act of 2005 clarified that the MMS has regulatory authority over offshore wind projects. 7. Beth Daley, FAA Determines Wind Farm Is ‘No Hazard,’ Boston Globe, May 18, 2010. 8. Mass. Gen. Laws ch. 164, § 69K (2010). 9. Town of Barnstable v. Massachusetts Energy Facilities Siting Board, 25 Mass. L. Rept. 375 (Mass. Super., May 4, 2009). 10. Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, 457 Mass. 663, 702 (Mass. August 31, 2010). 11. Id.
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848

SandBar 9:4, October, 2010
Recommended citation: Nicholas Lund, Cape Wind keeps Spinning, 9:4 SandBar 4 (2010).

Nicholas Lund, J.D.

More than nine years after it was originally proposed, an offshore wind project planned for Massachusetts’ Nantucket Sound has cleared several more regulatory hurdles and won another round of litigation, bringing it closer than ever to the start of construction. Cape Wind Associates, LLC (Cape Wind) won final approval from the Department of the Interior in April and from the Federal Aviation Administration a month later. In August, the Mass. Supreme Judicial Court ruled 4-2 that the state’s Energy Facilities Siting Board (EFSB) can authorize local permits despite opposition from local groups. If Cape Wind can win final approval from the state Department of Public Utilities (DPU), construction on the 130-turbine offshore farm could begin before the year is out.

Background
In July 2001, Cape Wind Associates announced its intention to construct the country’s first offshore wind farm on Horseshoe Shoal, in federal waters surrounded by Cape Cod, Nantucket, and Martha’s Vineyard. Cape Wind would generate more than 420 megawatts, enough to provide nearly half the electricity needs for Cape Cod and the islands. Cape Wind’s large footprint - plans originally called for 170 turbines covering 25 square miles of ocean - and unique coastal location have resulted in fierce opposition from some local groups. Environmental groups claim the project will harm the Sound’s environment and wildlife. Coastal towns and citizens (most famously the late Sen. Ted Kennedy) take issue with the potential aesthetic impacts of the farm. Several local Indian tribes claim that Horseshoe Shoal is sacred ground and that the project would obscure their view of the rising sun during ceremonies.
However, with support from an equally varied base including Massachusetts Governor Deval Patrick and groups like the Massachusetts Audubon Society and the American Lung Association, Cape Wind has survived numerous lawsuits and regulatory hurdles. In the first round of litigation, in August 2003, the First Circuit determined that because Cape Wind could be constructed more than three miles offshore the federal government, not the Commonwealth of Massachusetts, had exclusive jurisdiction to permit the construction of a data tower.1 Later that year, Cape Wind won again when the U.S. District Court for the District of Massachusetts denied an attempt by Cape Wind’s most active opponent, The Alliance to Protect Nantucket Sound (Alliance), to challenge the U.S. Army Corps of Engineers’ (Corps) authority to issue a permit under § 10 of the Rivers and Harbors Act.2 The District Court’s decision was affirmed by the First Circuit in 2005.3

Green Light from the Interior Department
In April 2010, Cape Wind scored another major victory when Interior Secretary Salazar announced that the Minerals Management Service (MMS)4 would offer a commercial lease and associated easement to Cape Wind Associates for the construction of the wind farm. The decision marked the end of nearly a decade of environmental review required under the National Environmental Policy Act (NEPA), which requires impact statements whenever a “major Federal action significantly affecting the quality of the human environment” is proposed.5 Triggered by federal involvement in the permitting of Cape Wind, NEPA required first the Corps then the MMS6 to create a comprehensive Environmental Impact Statement (EIS) outlining the various environmental impacts of Cape Wind, as well as several alternative projects. The EIS was finalized in January of 2009, and the MMS next decided whether to issue a final approval.
That approval came with the issuance of a Record of Decision in April. The MMS decided to approve the project with a few modifications. Secretary Salazar ordered the number of turbines reduced from 170 to 130, reconfigured the layout so the turbines were further away from Nantucket, and required new color-schemes and lighting schedules to improve visibility for humans and birds. The announcement from Secretary Salazar is considered “by far the most important decision for [Cape Wind].”7

FAA Approval
Less than a month later, Cape Wind cleared another hurdle when the FAA declared that the project will not significantly interfere with planes or radar. The May decision was the fourth time the FAA had ruled on the project, the first three decisions lapsing after 18-month delays. The FAA changed its rating from “presumed hazard” to “no hazard” after Cape Wind agreed to pay $1.5 million to the agency for radar modifications made to ensure that radar connections between planes and the FAA will not be disrupted by the turbines.

MA Court Case
Cape Wind’s most recent victory came in the courtroom, where Massachusetts’ highest court ruled that the EFSB could issue nine important local and state permits. The decision allows Cape Wind to acquire the permits in one stop from the EFSB rather than dealing individually with local governments and organizations, some of which are staunchly opposed to the project. The issue came to a head in 2007, when the Cape Cod Commission (Commission) denied approval of Cape Wind’s development of regional impact (DRI) report on the two transmission lines needed to connect the wind farm to the mainland. Instead of appealing that decision, Cape Wind applied to the EFSB under a state law allowing that group to issue composite local permits when an electric company cannot meet standards set by a local agency.8 The Commission and the Alliance (Plaintiffs) sued when the EFSB approved the project in May 2009, and the suit was joined with an appeal from a state Superior Court decision affirming EFSB’s jurisdiction over the project.9
      The plaintiffs relied on the public trust doctrine for their first major argument, claiming that the EFSB could not authorize transmission lines across state tidelands held in trust for the public without express authority from the legislature. The court disagreed, however, ruling that EFSB’s enabling legislation gave them proper authority to act in place of the state Department of Environmental Protection and administer public trust rights.
      Next, the plaintiffs argued that the EFSB erred in limiting its focus to the impacts of the transmission lines rather than the entire project. Again the majority sided with Cape Wind, ruling that the EFSB could only consider impacts of facilities to be located within state waters. To allow the EFSB to consider impacts of the wind farm itself and therefore potentially deny a necessary permit based on those impacts, the court ruled, would give the state agency improper authority over a primarily federal project. Regardless of any local opposition to Cape Wind, the majority ruled, local groups cannot control the fate of the project by denying a minor, related permit.
      Two judges dissented on these points. Justices Marshall and Spina wrote that allowing the EFSB to grant transmission lines across state tidelands without what they saw as legislative authority sets “a dangerous and unwise precedent” with “far-reaching consequences.”10 Finding a lack of express authority for the siting board to exercise such authority, the dissenters wrote that they would reverse on this point alone. Next, using the recent BP oil spill in the Gulf of Mexico as an example, the dissenting justices warned that a state’s failure to consider all the impacts of an offshore energy project, even if located in federal waters, can have “catastrophic effects.”11

An End in Sight?
Potentially, few hurdles remain before Cape Wind can become the nation’s first offshore wind farm. What may be the final regulatory battle is being fought this fall as the state DPU determines whether a pending 15-year deal between Cape Wind and utility company National Grid would result in acceptable electric rates for consumers. Opposition groups including the Alliance vow to challenge a positive DPU ruling in court and have already sued to challenge other aspects of the project, hoping to keep the project delayed. The DPU is expected to make a ruling in November.

Endnotes
1.   Ten Taxpayers Citizen Group v. Cape Wind Associates, LLC, 278 F.Supp.2d 98 (1st Cir. 2003).
2.   Alliance to Protect Nantucket Sound, Inc. v. United States Dept. of the Army, 288 F.Supp.2d 64 (D. Ma. 2003). For a detailed analysis of the District Court opinion, see Stephanie Showalter, Cape Wind Associates Wind Round Two, The Sandbar 2:4, 1 (2004) available at: http://nslgc.olemiss.edu/SandBar%20PDF /sandbar2.4.pdf.
3.   Alliance to Protect Nantucket Sound, Inc. v. United States Dept. of the Army, 398 F.3d 105 (1st Cir. 2005). For more on the First Circuit opinion, see Jeffrey Schiffman, Wind Farm Survives Another Challenge, The Sandbar 4:1, 1 (2005) available at: http://nsglc.olemiss.edu/SandBar%20PDF/sand -bar4.1.pdf.
4.   The agency has since changed its name to the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).
5.   National Environmental Policy Act, 42 U.S.C. § 4332(C) (2010).
6.   The Energy Policy Act of 2005 clarified that the MMS has regulatory authority over offshore wind projects.
7.   Beth Daley, FAA Determines Wind Farm Is ‘No Hazard,’ Boston Globe, May 18, 2010.
8.   Mass. Gen. Laws ch. 164, § 69K (2010).
9.   Town of Barnstable v. Massachusetts Energy Facilities Siting Board, 25 Mass. L. Rept. 375 (Mass. Super., May 4, 2009).
10. Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, 457 Mass. 663, 702 (Mass. August 31, 2010).
11. Id.