3-judge panel reversed lower court decisions
BOSTON – Cape Wind’s long-running quest to establish a wind farm on the Nantucket Sound hit another hitch Tuesday as a three-judge federal Appeals Court panel reversed lower court decisions that had found regulators complied with environmental and endangered species laws in permitting the project.
Cape Wind celebrated that the higher court had not made more rulings against it and the developer’s vice president of regulatory affairs, Dennis Duffy, said the decision would not be appealed. Duffy said Cape Wind would return to the federal regulatory processes the Appeals Court deemed were insufficient.
“Cape Wind is pleased that with today’s federal court decision the bulk of baseless issues that opponents have raised over the years are put to bed, including navigational safety, whales, turtles, Indian artifacts, Migratory Bird Treaty Act permitting, oil spills, and the approval of the project’s Construction and Operations Plan,” Cape Wind CEO Jim Gordon said in a statement. “The Court remanded only 2 matters, neither of which should involve substantial delays.”
The project’s chief opponent also cheered the ruling, while noting the matter of Migratory Bird Treaty Act permitting has yet to be settled. The decision says Cape Wind intends to obtain a Migratory Bird permit before harming the species.
“As a result, Cape Wind must go back to the drawing board and supplement their Environmental Impact Statement with adequate data to properly assess whether the project can be safely built, given seafloor conditions in Nantucket Sound. In addition, the Court said there needs to be a new analysis of the measures needed to reduce mortality and injury to endangered species including the Roseate Tern and the Piping Plover,” Alliance to Protect Nantucket Sound President and CEO Audra Parker said in a statement. “Cape Wind would also need a permit under the Migratory Bird Treaty Act before proceeding with the project.”
The Appeals Court panel did not vacate Cape Wind’s federal lease of an area of sea between Cape Cod and Nantucket, and both sides agreed to the importance of that.
“At present, the lease is suspended through next year per Cape Wind’s request,” Parker said. “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.”
Gordon said the fact that the court did not alter its offshore lease and other permits was the most important aspect of the ruling.
While the project’s chances of being completed have been questioned over the years, Cape Wind officials maintain that it “is the most advanced utility-scale offshore wind project in the U.S.” and assert the new court ruling “provides the roadmap to move the project to completion.”
Threatened to be sidelined in the House’s version of legislation intended to boost renewable energy resources, Cape Wind is eligible to compete for long-term offshore wind contracts under a Senate energy bill that will soon be routed to a six-member House-Senate conference committee for resolution.
Cape Wind has for years labored through courts and regulatory processes, as well as financing challenges, questing to become the nation’s first major offshore wind development.
In his ruling, Senior Judge Raymond Randolph attested to Cape Wind’s long journey against headwinds from litigious opponents, noting the project first sought government approval with a permit application to the U.S. Army Corps of Engineers in 2001.
“Delaying construction or requiring Cape Wind to redo the regulatory approval process could be quite costly,” Randolph wrote. “The project has slogged through state and federal courts and agencies for more than a decade.”
The ruling says the 130 turbines in the Horseshoe Shoal region are expected to generate up to 75 percent of the electricity needs on Cape Cod and the islands and the turbines would have an estimated 20-year lifespan.
Randolph determined that the Bureau of Ocean Energy Management violated the National Environmental Policy Act by failing to adequately assess the seafloor in its 2009 final environmental impact statement.
The court relied in part on the writings of Richard Clingan, a geologist for the federal bureau, who concluded Cape Wind “has not acquired sufficient geophysical data and information to adequately delineate in detail geologic hazards and conditions in the vicinity (1000m radius) of even one proposed turbine location.”
“Without adequate geological surveys, the Bureau cannot ‘ensure that the seafloor [will be] able to support’ wind turbines,” the court wrote, determining Cape Wind could supplement its earlier submittal before the commencement of construction rather than completely redoing the regulatory process.
The court decision also reopens a Fish and Wildlife Service action, vacating an “incidental take statement” concerning endangered roseate terns and threatened piping plovers. The service estimated the turbines would kill 80 to 100 terns and 10 plovers over its lifetime and recommended ways to mitigate that harm, the ruling said.
“One recommendation was to temporarily turn off the windmills during poor visibility periods to ‘reduce the risk of collision’ by birds flying through the wind farm – a process ironically called ‘feathering’ the turbines,” the decision described. The service later found that the feathering – which involves turning the turbines so they are narrow to the wind to minimize contact – would “not be reasonable,” according to the court, which found the service to be “arbitrary and capricious” on that front.