Another Legal Victory for America’s First Offshore Wind Project

Posted on December 5, 2014 by Katherine Kennedy

The 468 megawatt Cape Wind project, slated for construction in federal waters off the coast of Massachusetts in Nantucket Sound, is the first offshore wind project to be proposed and approved in the United States.  The project has strong support from the Commonwealth of Massachusetts, many national, state and local environmental groups, organized labor and many others. 

But being the first in an innovative venture is always difficult, and unsuccessful litigation by project opponents – some funded in large part by billionaire Bill Koch – has slowed the pace of the project.  By Cape Wind’s count, thirty-two cases have been filed by project opponents.  Cape Wind has ultimately prevailed in all of these actions.

A recently issued but unheralded district court decision now signals yet another legal victory for Cape Wind.

In April 2010, after a lengthy and comprehensive environmental review and permitting process which included preparation of two environmental impact statements, the U.S. Department of Interior approved the Cape Wind project.  Project opponents then filed three complaints in the United States District Court for the District of Columbia.

The complaints, which were ultimately consolidated, challenged approval of the project by various federal agencies and alleged violations of the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Birds Treaty Act, the National Historic Preservation Act, the Outer Continental Shelf Lands Act, and the Coast Guard and Maritime Transportation Act of 2006. 

Cape Wind intervened in the actions as a defendant-intervenor.  Because of the project’s clean energy significance, NRDC attorneys (including me), joined by the New England-based Conservation Law Foundation and Mass Audubon, the state’s leading wildlife protection organization, filed two “friend of the court” briefs in support of the project.

In March 2014, U.S. District Court Judge Reggie Walton issued an 88-page decision granting summary judgment to the defendants, rejecting the bulk of opponents’ challenges to the federal government’s 2010 approval of the project.  The court dismissed outright a host of claims that related to the government’s environmental review of the project under the National Environmental Policy Act and to the Coast Guard’s review of navigation issues under the Outer Continental Shelf Lands Act.

The court remanded two limited issues back to the federal agencies. First, it directed the U.S. Fish & Wildlife Service (FWS) to make an independent determination about whether a potential operational adjustment for the project was a “reasonable and prudent measure”.  The court explained that it was unable to tell, based on the record, whether the Fish & Wildlife Service had made an independent determination or had adopted a position taken by a sister agency.

Second, the court directed the National Marine Fisheries Service (NMFS) to issue an incidental take permit covering right whales.  While the NMFS biological opinion stated that the project “was not likely to adversely affect right whales” and that “incidental take was not likely to occur,” the court found that the opinion did not state that an incidental take would not occur or determine the volume of any potential take.

After the court’s decision, the two federal agencies complied with the district court’s instructions.  FWS issued its independent determination with respect to the potential operational adjustment.  NMFS amended the incidental take opinion to state that no take of right whales was anticipated, and thus the incidental take amount for this species could be set at zero.

However, that did not end the matter.  As the district court noted in its September 12, 2014 order, “history should have forewarned that any attempt to bring this [protracted] litigation to an expeditious conclusion would prove difficult.”  And as expected, the plaintiffs filed a supplemental complaint challenging the two agencies’ actions on remand.

On November 18, 2014, the district court dismissed the plaintiffs’ supplemental complaint.  The court made short work of the claims, finding them all to be barred – some because they had been previously waived or abandoned and some because the Court had previously considered and rejected them.  Indeed, the court noted that some of the claims were “difficult to understand.” With that decision, this chapter in the long string of legal challenges was concluded, at the district court level at least.  The plaintiffs filed a notice of appeal yesterday.

Meanwhile, the Cape Wind project continues to move forward.  In July, the U.S. Department of Energy issued a conditional loan guarantee commitment for the project, the first step toward securing a $150 million loan guarantee.  In August, the project selected its lead construction contractors.  Construction is expected to proceed in 2015.  

And Cape Wind’s example has spurred forward movement in the U.S. offshore wind industry.  Currently, there are some fourteen offshore wind projects in an advanced stage of development along the East Coast and elsewhere, representing 4.9 gigawatts of potential renewable electricity capacity.  Despite the protracted litigation, it’s my hope that Cape Wind, buoyed by its legal victories, will herald the start of a new renewable energy industry that will fully and sustainably tap into the United States’ huge offshore wind resource.



Comments (3) -

Ridge Hall United States
12/5/2014 4:16:25 PM #

Very nice article. It will be a big boost for our renewable energy quest to see this up and running.

Juan Manuel Prada Colombia
12/6/2014 8:42:22 PM #

It is a great example of the power of the government for the common sense,
in many projects for generate energy they don't accept that the environment is in risk,
and the ecosystem around and the community in danger only want to see the project finish, in our country exist a case near to Antioquia that the government and the environmental laws permit and not have in count the public and the nature around, it is need it to review again but they not accept and try to jump all the criteria and make many thinks outside the law and outside of the common sense to do pressure in all circles of the society. i like to read a article that have all the scientific background to show to the people how it works in other countries and the advances in the knowledge for make clean energy for better quality of life for all in a general sense. thank you.

Frank Haggerty United States
12/20/2014 8:18:54 PM #

The Cape Wind project is no longer a 468 megawatt project :
The Cape Wind project plans were approved in 2011 for 130 commercial 3.6 megawatt gear driven wind turbines. The project cost estimate by Attorney General Martha Coakley was 2.6 Billion dollars in 2009.
Much has changed since 2009. The wind industry has switched to more expensive direct drive wind turbines because of the gear box maintenance issues. The under water electric cables cost as much as the turbines and copper has doubled since 2009. The project looks to be around 4 Billion.
The project was permitted for 468 megawatts. As of today in order to keep the 2.6 Billion dollar figure the project is only going to install 111 commercial wind turbines and 19 at a later date for the total of 130 commercial wind turbines . The question now is will they change the size of the turbines to 4.0 megawatt turbines in order to reach near the permitted 468 megawatts.

ISO meeting Jan 2014
[DOC]Minutes of the - ISO New England
www.iso-ne.com/.../a2_012114_rc_mtg_minutes_final...
ISO New England
Mr. Jack Arruda (Cape Wind) provided an overview of the Cape Wind revisions ... future date to capture the full 4.0 MW capability of the individual turbine output?

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