Massachusetts wind farm stumbled on shorebirds

WASHINGTON — Construction of the first off-shore wind farm in Massachusetts has a hit a snag with the D.C. Circuit chiding regulators about plans to protect shorebirds.

The Cape Wind Energy Project was created to fulfill the state's renewable-energy requirements but the green ambition has failed to satisfy other environmentalists who say the construction of 130 windmills will pollute the scenery, kill sea birds and harm whales.

Among those who filed suit in Washington are Public Employees for Environmental Responsibility and the Alliance to Protect Nantucket Sound. They accused federal regulators of rubber-stamping the project in contravention of half a dozen U.S. laws.

Though U.S. District Judge Reggie Walton ruled for the agencies in 2014, the D.C. Circuit revived two claims last week.

One of the claims involves the lack of a plan for seabirds the turbines will harm.

Though the U.S. Fish and Wildlife Service has estimated that the turbines will kill 80 to 100 endangered roseate terns and 10 threatened piping plovers over the 20-year lifespan of the project, the agency nevertheless said Cape Wind's activities would not "jeopardize the continued existence" of any listed species.

Both Cape Wind and the U.S. Bureau of Ocean Energy Management objected when the service suggested that someone turn off the windmills occasionally during periods of poor visibility.

Known as feathering, this process could help "reduce the risk of collision" by birds flying through the wind farm.

The service heeded the objections and did not include feathering in the incidental take statement that the service prepared with recommendations to minimize harm to Nantucket Sound birds.

Based on the exclusion of the feathering option, the environmentalists said that the incidental take statement violated the Endangered Species Act.

Reviving this claim last week, the D.C. Circuit called it arbitrary and capricious for the service to disregard submissions by the environmentalists on this point.

The court also revived a claim that the Bureau of Ocean Energy Management relied on "inadequate geological surveys" in preparing a statement about whether the seafloor can support the turbines.

The bureau must supplement its environmental impact statement with adequate geological surveys before Cape Wind may begin construction, but the court found it unnecessary to halt the project.

"Delaying construction or requiring Cape Wind to redo the regulatory approval process could be quite costly," Senior Circuit Judge A. Raymond Randolph wrote for a three-person panel.

Citing the need for Massachusetts to meet renewable-energy requirements, Randolph declined to vacate Cape Wind's lease or other regulatory approvals based on the violation of the National Environmental Policy Act.

Cape Wind is expected to generate 75 percent of electricity for Cape Cod and neighboring islands.

Judges Patricia Millett and Robert Wilkins concurred in the ruling.

The decision comes one year after the Boston-based First Circuit revived an unrelated challenge to Cape Wind — this one alleging that Massachusetts forced an energy company to buy overpriced wind-turbine electricity.

Joined by businesses and individuals opposed to Cape Wind, the Cape Cod town of Barnstable said Massachusetts cut a deal that required NStar Electric to buy electricity from Cape Wind, though cheaper energy was available out of state.

Claiming that the increased energy costs will cost consumers $1 billion over the lifespan of the 15-year contract, Barnstable said the "power-purchase agreement" came to pass because the state Department of Energy Resources "threatened to erect various regulatory roadblocks to the merger unless NStar executed a contract to buy electricity from Cape Wind on substantially the same terms and conditions that another of the Commonwealth's utilities, National

Grid, had agreed to several years earlier."