Cape Wind Wins in Court Again

United States District Judge Reggie B. Walton last week issued rulings against Cape Wind’s opponents in their four lawsuits that had challenged the project’s permitting approval by the U.S. Department of Interior.

In his rulings, Judge Walton upheld the Department of the Interior’s review and approval of Cape Wind, a thorough and comprehensive permitting process that took 10 years. The Court soundly rejected the plaintiffs’ request to vacate the granting of the nation’s first offshore wind lease by the Department of the Interior to Cape Wind.

Judge Walton rejected a long list of legal claims project opponents had raised, including arguments over navigational safety, alternative locations, alternative technologies, historic preservation, Native American artifacts, sea turtles, and the adequacy of the project’s environmental impact statement and biological opinions. In two narrow instances, Judge Walton has asked Federal agencies to clarify its findings on whales and birds. The order indicates that the case is administratively closed until the Court is provided with the clarifications. Cape Wind expects these two compliance actions to be minor agency administrative actions that will not impact Cape Wind’s financing schedule.

“These are incredibly important legal victories for Cape Wind. It clears the way for completing the financing of a project that will diversify New England’s electricity portfolio by harnessing our abundant and inexhaustible supply of offshore wind,” stated Cape Wind President Jim Gordon. “It will help pave the way for other coastal regions to utilize this clean energy resource for energy independence, a healthier environment, and new jobs,” Gordon continued.

While the Court upheld the decision of the National Marine Fisheries Service that impacts to right whales would be “insignificant or discountable” and that whale presence would be “rare, sporadic and extremely limited in duration and frequency,” it nonetheless directed the agency to issue a statement of the volume, however unlikely, of potential whale incidents that would raise the need for further consultation with the agency. With respect to the Fish and Wildlife Service, the Court directed the agency to confirm that its decision regarding a proposed operational restriction was arrived at through an independent determination.

These legal challenges were heard by the Court on a consolidated basis and were fully briefed in August, 2013. Environmental organizations such as the Natural Resources Defense Council, the Conservation Law Foundation of New England, and the Massachusetts Audubon Society intervened by filing amici curiae papers in support of Cape Wind and the government.

The four legal challenges were originally filed in 2010 by the opposition group to Cape Wind (Alliance to Protect Nantucket Sound), the Town of Barnstable, the Aquinnah Wampanoag Tribe and the Public Employees for Environmental Responsibility. The failed lawsuits had challenged Cape Wind’s permitting approvals by Federal agencies on the grounds of the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Birds Treaty Act, the National Historic Preservation Act, the Outer Continental Shelf Lands Act, the Coast Guard and the Maritime Transportation Act of 2006.

Cape Wind’s comprehensive and rigorous permitting review by seventeen Federal and State agencies spanned ten years and produced an administrative record of over 400,000 pages. The key findings of these reviews were that Cape Wind would provide significant environmental, economic and energy benefits to Massachusetts and the nation.

Prior to last week’s decisions, Cape Wind had consistently won a series of legal challenges brought by project opponents, largely funded by coal and petroleum coke magnate William Koch. Most recently with a victory in Federal Court upholding the FAA’s 4th approval of Cape Wind in January of this year.

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Press release, March 17, 2014; Image: Cape Wind