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Supreme Court Arguments Set

As public attention ratchets up surrounding the controversial Cape Wind project planned for Nantucket Sound, the Massachusetts Supreme Judicial Court is set to hear arguments next week in a case that will decide whether the wind farm developers can sidestep review by the Cape Cod Commission.

As public attention ratchets up surrounding the controversial Cape Wind project planned for Nantucket Sound, the Massachusetts Supreme Judicial Court is set to hear arguments next week in a case that will decide whether the wind farm developers can sidestep review by the Cape Cod Commission.

The case involves numerous parties and a wide range of complicated legal issues, but at its heart it is about the powers of the Cape Cod Commission, and by extension the Martha's Vineyard Commission, which was created by an act of the state legislature in 1974 and remains unique among regional planning agencies in the commonwealth. The Cape Cod Commission was modeled after the Vineyard commission. Four of the six Vineyard towns have filed friend of the court briefs in the potentially precedent-setting case.

Plaintiffs in the case are the Cape Cod Commission, the town of Barnstable and the Alliance to Protect Nantucket Sound, an advocacy group dedicated to blocking the wind farm. Defendants are Cape Wind Associates and the state attorney general representing the Energy Facilities Siting Board, which has issued a super permit to Cape Wind, allowing it to circumvent the Cape Cod Commission for the part of the wind farm that... more [truncated due to possible copyright]  

As public attention ratchets up surrounding the controversial Cape Wind project planned for Nantucket Sound, the Massachusetts Supreme Judicial Court is set to hear arguments next week in a case that will decide whether the wind farm developers can sidestep review by the Cape Cod Commission.

The case involves numerous parties and a wide range of complicated legal issues, but at its heart it is about the powers of the Cape Cod Commission, and by extension the Martha's Vineyard Commission, which was created by an act of the state legislature in 1974 and remains unique among regional planning agencies in the commonwealth. The Cape Cod Commission was modeled after the Vineyard commission. Four of the six Vineyard towns have filed friend of the court briefs in the potentially precedent-setting case.

Plaintiffs in the case are the Cape Cod Commission, the town of Barnstable and the Alliance to Protect Nantucket Sound, an advocacy group dedicated to blocking the wind farm. Defendants are Cape Wind Associates and the state attorney general representing the Energy Facilities Siting Board, which has issued a super permit to Cape Wind, allowing it to circumvent the Cape Cod Commission for the part of the wind farm that involves running cables onto land to connect to the power grid.

A privately held commercial development company, Cape Wind wants to build 130 giant turbines across 25 square miles of Horseshoe Shoal in federal waters on Nantucket Sound. Nine years in the making and still not fully permitted, if it goes forward the project would be the nation's first offshore wind park. Under the plan, cables carrying electricity generated by the wind turbines would run from the industrial ocean power plant beneath the seabed across some 13 miles to the town of Yarmouth, where the cables would then run across land and into a switching station of sorts for transmission to the general power grid. The Cape Cod Commission has jurisdiction over this sea-to-land transmission part of the project.

In 2007 Cape Wind developers applied to the commission for review as a development of regional impact. But the commission never reviewed the plan on its merits, instead denying the application on procedural grounds after the developers failed to submit a completed application under the commission's rules. Cape Wind then appealed to the Energy Facilities Siting Board which ruled that it had the power to supersede its sister agency, voting to grant a composite permit to the wind park developers that bundles all needed state and local permits into one.

The case raises many questions. Did Cape Wind act in good faith or make a calculated move intended to skip a step that involved intense environmental scrutiny by taking the plan straight to a state agency whose scope of review was far more narrow and whose board is politically appointed? And when the plan did come before it, was the Energy Facilities Siting Board required to consider the entire Cape Wind project, or was it limited to reviewing only the part of the project that lies in state waters?

Hundreds of pages of legal briefs written by attorneys on both sides of the case offer a wide range of opinions on these and other questions. In addition to their legal opinions, the briefs are a window into the tension and hostility that has colored the Cape Wind project for nearly a decade.

But a central question to be decided by the state's highest court - and the one that most concerns the Vineyard - is who trumps whom: the Energy Facilities Siting Board or the Cape Cod Commission, both state agencies created by the Massachusetts legislature.

A relevant case involving the Martha's Vineyard Commission was decided by the Massachusetts Land Court nine years ago, perhaps ironically just as the first sketches of Cape Wind began to emerge. In that case, which involved a golf course developer who wanted to avoid review by the commission and had threatened to build a huge affordable housing project on his land in an openly hostile gesture, the land court ruled that the commission act trumped Chapter 40B, the state law that allows developers to skirt most local zoning rules for affordable housing projects. As a result, Chapter 40B affordable housing developments on the Vineyard are subject to review as developments of regional impact.

The case turned on a question of whether the commission is considered a local board; similar language is at issue in the Cape Wind case.

Attorneys for the Cape Cod Commission and Cape Wind, who will argue before a panel of justices next week, declined comment yesterday.


But Ronald H. Rappaport, town counsel to five of the six Vineyard towns, who wrote the friend of the court brief on behalf of Aquinnah, Edgartown, Chilmark and West Tisbury, said the outcome of the case has important implications for the Vineyard.

"The four towns who filed the amicus brief are not taking a position for or against the Cape Wind project," Mr. Rappaport said. "What's important is that the powers of the Cape Cod Commission, which are very similar to the Martha's Vineyard Commission, and the powers of the local towns, Barnstable and Yarmouth, be upheld because what happened there can happen here."

He concluded: "There is a reason that the Martha's Vineyard Commission and the Cape Cod Commission were set up - and it's important for everyone to step back and recognize that and not have that fall by the wayside in the rush to move a project forward that may appear to have significant public benefits. Because the protection of the Vineyard and Cape Cod are also significant public benefits."

Arguments are scheduled for 9 a.m. on Thursday at the John Adams Courthouse in Boston.


Source: http://www.mvgazette.com/ar...

FEB 5 2010
https://www.windaction.org/posts/24483-supreme-court-arguments-set
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