Federal Court Makes Cape Wind Ruling: A Win For Both Parties?


In an overturn of a previous district court decision, a federal court has ruled that the U.S. Fish and Wildlife Service (FWS) and Bureau of Ocean Energy Management (BOEM) were not in compliance with the Endangered Species Act or the National Environmental Policy Act (NEPA), respectively, when they issued a lease for Cape Wind’s proposed project off the coast of Massachusetts.

According to the ruling from the U.S. Court of Appeals for the District of Columbia Circuit, the plaintiffs – including the Alliance to Protect Nantucket Sound and Public Employees for Environmental Responsibility – had claimed that several federal agencies “violated half a dozen federal statutes in allowing Cape Wind’s project to move through the regulatory approval process.”

The other statutes include the Shelf Lands Act, the Coast Guard and Maritime Transportation Act, the National Historic Preservation Act, and the Migratory Bird Treaty Act.

In March 2014, the Washington, D.C., district court “rejected most of these claims and granted partial summary judgment to the government agencies,” the appeals court document states. Then, in November 2014, “the [district] court rejected [the] plaintiffs’ remaining claims, granted summary judgment and dismissed the case.”

Now, the appeals court is reversing the lower-court decision on NEPA and the Endangered Species Act.

Cape Wind first applied for federal approval back in 2001 for the 130-turbine, 468 MW project, which would be situated off Nantucket Island. Since then, it has been met with a number of roadblocks, including the termination of its power purchase agreements (PPA) back at the start of 2015: Utilities National Grid and NSTAR both killed their 15-year PPAs, contracted in 2010 and 2012, respectively, after they claimed Cape Wind did not meet financing and construction agreements.

At an American Wind Energy Association conference last fall, Dennis Duffy, vice president of regulatory affairs for Cape Wind, noted that the project would still proceed, despite the termination of the PPAs. The company expects the offshore wind farm, if completed, to supply nearly 75% of the electricity demand for Nantucket, Cape Cod and Martha’s Vineyard.

Jim Gordon, CEO of Cape Wind, says in a statement that the company is pleased the “bulk of baseless issues that opponents have raised over the years are put to bed.” Moreover, he says, the two remanded statutes should not bring forth “substantial delays” in bringing the embattled project to fruition.

“Most importantly,” he adds, “the court clarified that its decision does not disturb Cape Wind’s existing offshore lease or its other permits and approvals.”

Indeed, the court document says that neither Cape Wind’s lease nor “other regulatory approvals” will be revoked.

“Delaying construction or requiring Cape Wind to redo the regulatory approval process could be quite costly,” the court states. “The project has slogged through state and federal courts and agencies for more than a decade.” It also notes that the project could help contribute to Massachusetts’ increasing requirements for renewable energy procurement.

Instead, the court is directing BOEM to “supplement its 2009 Environmental Impact Statement to further address seafloor and subsurface issues,” says Cape Wind.

“However, all requisite subsurface studies were subsequently performed by Cape Wind in 2012,” the developer says, adding that if BOEM decides these 2012 surveys can “adequately address [these] geological concerns,” it could “refer to them in its revised impact statement,” according to the court document.

“The court also remanded [FWS’] conclusion that occasional project shutdowns to avoid potential bird impacts were not reasonable or appropriate – a matter that FWS has already reviewed extensively,” says Cape Wind.

On the other hand, the Alliance to Protect Nantucket Sound is calling the decision a “victory for the fishermen, pilots, boaters, Native Americans, environmentalists, homeowners, towns, and businesses which have fought to protect Nantucket Sound against Cape Wind for 15 years,” explains Audra Parker, the alliance’s president and CEO, in a statement.

In order to meet the court’s orders, the alliance believes Cape Wind “must go back to the drawing board,” including obtaining a permit under the Migratory Bird Treaty Act.

Noting that the court did not take away Cape Wind’s lease, the group says, “At present, the lease is suspended through next year, per Cape Wind’s request. So long as that 28-year lease can be revived, Cape Wind’s developers will continue to press ahead with attempts to either build their massive, 130-turbine project or sell that lease to another potential developer.”

However, Cape Wind maintains that the court decision “provides the roadmap to move the project to completion.”

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