Judicial review of the Aviation Hazard Determinations for Cape Wind: Why the FAA got it wrong

Introduction

This paper examines the Court of Appeals for the D.C. Circuit’s decision in Town of Barnstable v. FAA which stalled development of a major offshore wind farm project. Harnessing the wind to power human activity started in early 500 A.D. when Persians constructed the first known windmills. In 1854, the first known windmill that would spin in whatever direction the wind blew and could automatically slow itself down was invented here in the United States. Americans have continued in the tradition of ingenuity to capture the power of Nature, but with much greater efficiency and far more developed technology.

Over 51,000 megawatts of power is generated from wind in the United States today and our nation accounts for twenty percent of the global generation of wind energy.6  This number is expected to grow as the United States embarks on an ambitious plan to provide 10 gigawatts of offshore wind generating capacity by the year 2020 and 54 gigawatts by 2030.  The first of these major offshore wind projects in the United States was slated to be Cape Wind, located off the coast of Massachusetts in Nantucket Sound.  Cape Wind is expected to have 130 turbines located between five and thirteen miles from the Massachusetts shoreline.

This project can generate 174 megawatts of energy on average, with a maximum generating capacity of 486 megawatts.10 Cape Wind advocates claim that this wind farm will be able to provide seventy-five percent of all the power needed for Cape Cod, Martha’s Vineyard, and Nantucket. Despite the push for green technology and the issuance of approvals from various federal agencies including the Department of Interior (DOI) and Federal Aviation Administration (FAA), Cape Wind has met strong resistance from the surrounding local towns, the homeowners in those communities, and even Robert F. Kennedy, Jr., the son of Robert F. Kennedy and a Senior Attorney for the Natural Resources Defense Council (NRDC).12 In January 2011, the Town of Barnstable, Massachusetts and the non-profit group The Alliance to Protect Nantucket Sound filed an action in the Court of Appeals for the D.C. Circuit to stop the wind farm from being constructed. The petitioners argued that the FAA determination stating the wind turbines did not pose a hazard to aviation was issued arbitrarily and capriciously. 

Their reasoning was the FAA “misread its own regulations, and . . . failed to calculate the dangers posed to local aviation.” Although the FAA opposed the relief sought, the D.C. Circuit vacated the FAA decision and remanded the determination back to the FAA.16 Taking the court’s opinion into account, the FAA conducted a new inquiry and released a secondary determination still finding that Cape Wind was not a hazard to air travel. This comment will argue the Court of Appeals for the District of Columbia was arguably justified in finding the FAA’s first determination to be arbitrary and capricious, and that based upon the initial ruling, the FAA has not corrected the fatal flaw in its second determination. In support of this thesis, Part II of the comment will give an overview of the approval process for Cape Wind and explain the required FAA determination. Part III will explore the FAA’s initial no hazard determination findings regarding Cape Wind. Part IV will summarize the arguments made by the parties of the Barnstable case and will address the D.C. Circuit’s holding. Part V will discuss why the FAA’s second determination is still deficient under the Barnstable holding. Finally, Part VI will propose solutions to avoid future challenges to FAA No Hazard Determinations, specifically including a revision to the FAA’s own regulations.