Town of Barnstable, MA v. Federal Aviation Administration

This case arises following the approval of a lease by the U.S. Department of Interior to Cape Wind Associates for construction of an offshore wind farm in Nantucket Sound. Under the lease, Cape Wind must obtain the Federal Aviation Administration’s (“FAA”) determination whether the turbines pose a hazard to air navigation and comply with any mitigation measures before beginning construction. In Town of Barnstable, Mass. v. FAA, 659 F.3d 28 (D.C. Cir. 2011) (“Barnstable I”), the court held that the “no hazard” determinations in 2010 for each of the wind turbines in a 25–square mile area of Nantucket Sound were “inadequately justified.” Id. at 31. Petitioners now challenge the no hazard determinations in 2012 as similarly deficient for failing to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. The court denies the petitions for review regarding the 2012 FAA determinations due to changes in radar technology and new FAA studies and analysis.

Barnstable 2011

Petitioners make two arguments on the merits. They contend that the FAA’s No Hazard determinations are arbitrary and capricious because they depart from the agency’s own internal guidelines. They also argue that the FAA failed to fulfill its obligations under 49 U.S.C. § 44718(b). We need reach only the first of these arguments because we agree with petitioners that, in light of the FAA’s improper application of its own handbook, the FAA did not “adequately explain its result.” Public Citizen v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)...

It is undisputed that the project turbines would (i) have the threshold “physical or electromagnetic radiation effect on the operation of air navigation facilities” (per the first sentence), and would (ii) “[r]equire a VFR operation, to change its regular flight course or altitude” (per the second sentence, together with § 6-3- 3(b)).1 See Determination at 5, 7. The FAA’s complete reliance on § 6-3-8(c)1 is therefore inconsistent not only with the language of that provision (reading into it a non-existent “only”), but with the organization of the handbook, which anticipates that structures qualifying under either segment of §6-3-3’s first sentence are to be assessed for the harms identified in the second sentence’s subsections (a) through (f)...

The petitions for review are accordingly granted, and the FAA’s determinations are Vacated and Remanded.

Barnstable 2014

By the time the FAA issued no hazard determinations on August 15, 2012, the circumstances with regard to radar had changed. In January 2012, the FAA upgraded the ASR-8 radar and beacon at Otis Airfield by digitizing the output with a TDX- 2000 processor. The FAA had concluded in the aeronautical study that the installation of the TDX-2000 would not only address existing radar issues with “coasting, dropped targets, and ring around,” but also reduce unwanted returns from the wind turbines. 2012 Determination at 5. In a study conducted before the TDX-2000 was permanently installed, the FAA ran tests simulating wind turbines on the ASR-8 radar at Otis Airfield with and without a TDX-2000 and confirmed that the modification was effective. The FAA further evaluated the actual operation of the TDX-2000 at Otis Airfield after its permanent installation in 2012. See Resp’t Br. at 13.
On remand, the FAA explained that its aeronautical study had relied on multiple reports to evaluate potential impacts to the three FAA radar sites on or near Nantucket Sound. The FAA found that the Cape Wind project would have no noticeable impact on beacon, or “secondary,” radars. All three radar sites (at North Truro Cape, Nantucket, and Falmouth) are more than 2.4 nautical miles from the proposed turbines, a distance at which a 2008 study near a wind farm in Great Falls, Montana, found that turbines generated no false target reports. 2012 Determination at 4 & n.2 (citing Guidelines for Evaluating Wind Turbine Impacts to Radars (Dec. 2010) (“2010 Guidelines”))...

Having found that the turbines, individually and as a group, would neither exceed the obstruction standards in 14 C.F.R. § 77.17 nor have a physical or electromagnetic radiation effect on the operation of air navigation facilities, see Handbook § 6-3-3, the FAA concluded, in the absence of either condition, that no further “adverse effect” evaluation was required. The FAA also found the turbines would not create a safety risk for local pilots because they would be properly lighted and marked. In issuing the 2012 no hazard determinations because the proposed wind farm would not have a substantial adverse effect and would not be a hazard to air navigation, the FAA included several conditions, one of which required Cape Wind to place $15 million in escrow for two years to acquire and install an ASR-11 radar system if the TDX-2000 upgrade at Otis Airfield proved insufficiently effective...

[W]e deny the petitions for review.

Barnstable V

Download file (174 KB) _FAA_decision_Oct_28_2011

Barnstable V Faa Decision Jan 22 2014 12 1362 1476052

Download file (48 KB) pdf

JAN 22 2014
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