Library filed under Legal from Massachusetts
Cape Wind, the first proposed offshore wind project in the United States, sent letters to the two utilities that contracted to purchase nearly 80% of the project's output, including energy, renewable energy credits (RECs) and capacity. The letters, one to National Grid, the other to NSTAR, stated the company was invoking the 'Force Majeure' clause of the contracts due to on-going litigation as its reason for not meeting the December 31, 2014 deadline for securing project financing. Both utilities responded within six days with official notice that the contracts were terminated. Cape Wind could have sought a six-month extension of the contracts by paying $1.29 million in consideration but opted not to take advantage of that option.
Playing out in Massachusetts is a saga in which a private developer is using his political connections to trump the interests of state electric ratepayers - and in the process creating a precedent for much broader misuse of governmental power. The saga involves a court case in which state officials invoked an arcane provision of the U.S. Constitution to deny aggrieved ratepayers access to federal court.
The town of Barnstable, the Alliance to Protect Nantucket Sound and local businesses and residents filed a legal brief with the U.S. Court of Appeals in Boston this week seeking to overturn a lower court decision dismissing their lawsuit, which alleged that the state illegally coerced utility NSTAR to purchase power from the Cape Wind project. The introduction to the filing is provided below. The full appeal filed with the court can be accessed by clicking the link(s) on this page.
The plaintiffs argue that U.S. District Court Judge Richard Stearns' ruling in May was "gravely flawed" because it concluded that their lawsuit was barred by the U.S. Constitution's 11th Amendment, which largely shields states from lawsuits in federal court made without their consent.
"Our case alleges that NSTAR was coerced into signing a no-bid contract that violates federal law, discriminates against affordable green power producers from out of state, and burdens small businesses and municipalities with unnecessarily high electricity costs," said Audra Parker, President and CEO of the alliance.
Noted constitutional law professor Laurence Tribe has agreed to represent the Alliance to Protect Nantucket Sound in its appeal of a federal court decision, which dismissed a multi-party challenge of Cape Wind's high priced contract with NSTAR.
The state Appeals Court on Wednesday upheld a Land Court decision in favor of a proposed wind turbine on Turkey Hill. ...The judge also dismissed the argument about the shadow flicker, saying the nursing home is surrounded by trees that will block most of the shadows. The planning board required that the turbine be shut down if the flicker exceeds 30 minutes a day or 30 hours a year.
"If instead of a judicial robe, I were to wear the hat of John Muir or Milton Friedman, I might well conclude that the Cape Wind project should have been built elsewhere (or not built at all), or that the NStar-Cape Wind contract should never have been approved," Stearns wrote. ...The banks expect to provide more than $400 million in debt themselves in addition to $900 million in potential financing from other sources.
Stearns said he doubted the plaintiffs — which include several Cape Cod businesses, individuals, the Alliance to Protect Nantucket Sound and the town of Barnstable — could get past the constitutional amendment which generally gives states immunity from being sued.
The judge, in his ruling, didn't suggest the project would cause harm to the whales or protected migratory birds such as the piping plover and roseate tern. But he did say the U.S. Fish and Wildlife Service violated the Endangered Species Act by not making an independent evaluation of plans for a seasonal shutdown of the wind farm's rotors to avoid possible collisions with the birds.
The suit filed Tuesday by the Alliance to Protect Nantucket Sound, the town of Barnstable and several Cape Cod businesses and individuals argues that by brokering the deal between NStar and Cape Wind, the state discriminated against out-of-state power companies with a deal that will drive up electricity costs.
Longtime opponents of the controversial Cape Wind project are again challenging the proposed offshore wind development in court, saying the state overstepped its authority when it brokered an agreement for the utility NStar to purchase power from the offshore wind project.
Recent legal events prompted the alliance to take this new approach. The opposition group was emboldened by two decisions last fall by federal judges in Maryland and New Jersey. Those decisions, which are both now under appeal, essentially said regulators in those states infringed on the Federal Energy Regulatory Commission’s authority to set wholesale electric rates by imposing contracts to help finance the construction of natural gas power plants.
The preliminary injunction was filed late last night and requires the town to turn off the machines from 7 PM to 7 AM daily. Additionally, Judge Muse’s decision calls on the turbines to be turned off on Thanksgiving, Christmas and New Year’s Day. The move follows what was a supposed agreement reached two weeks ago in Barnstable Superior Court between Falmouth’s attorneys and lawyers representing neighbors living near the turbines.
Two weeks ago, in the injunction hearing in the Town of Falmouth vs. the Falmouth Zoning Board of Appeals case where the ZBA decided that the wind turbines were a nuisance to Neil Andersen, both parties presented a 7AM to 7PM agreement to the judge. Falmouth Selectmen subsequently disregarded that agreement and continued to run the wind turbines 5AM to 9PM. One selectboard member advocated running the turbines 24/7 in spite of the Court's request. Hearing this, Superior Court Justice Christopher Muse granted the injunction sought by nearby residents. The order is available by clicking the link on this page.
Opponents of a controversial pair of town-owned wind turbines got a boost in Barnstable Superior Court recently when a judge said they had a "likelihood of success" in their legal battle. But they haven't won yet.
...the reason for the suit was to protect the town, which has already been faced with a lawsuit in US District Court in Boston from two homeowners claiming that the turbines represent a nuisance and are seeking monetary damages. If others follow suit, the town could be faced with a potential liability of $215 million if nuisance claims are proven.
The town’s 28-page wind turbine ordinance is very specific and has very strict sound levels that are even lower than those set by the Maine Department of Environmental Protection, and Horton agreed with the Beckfords “that the low frequency levels exceeded the [Clifton Land Use Ordinance] limits.”
In his appeal, Mr. Melone referred to Cape Wind’s “well-documented and specific and substantial alteration of the direct viewscape from Melone’s property” and said the project would negatively impact the view on Nantucket Sound from his home and reduce the property’s value.
Contract signed between Cape Wind and NSTAR, a Massachusetts-based utility.