Federal judge backs bulk of Cape Wind approval, orders additional work from 2 agencies

Source: Nick Juliano, E&E reporter • Posted: Monday, March 17, 2014

A federal judge today ruled the evaluation of a project aiming to be the nation’s first offshore wind farm was generally aboveboard, but directed two agencies to further review some of the project’s impacts on wildlife.The decision has led both sides to declare victory.Cape Wind backers say the project off the coast of Massachusetts scored a major win because the bulk of plaintiffs’ claims were dismissed and because the judge did not question the underlying conclusions of supporting agencies even as he determined they hadn’t quite completed everything that was required of them. But project challengers say the work that must be redone cuts to the heart of whether the wind farm would be viable, exacerbating the uncertainty that has surrounded it for more than a decade.

The decision concludes the last remaining litigation around the project, although plaintiffs say they may appeal on points where they lost. The case combined four lawsuits brought by various opponents of the project, including Public Employees for Environmental Responsibility, the Alliance to Protect Nantucket Sound and local municipalities around Cape Cod, which claimed that federal regulators at the Interior Department, Coast Guard and other agencies failed to live up to the requirements of nearly a dozen laws governing review of the project.

Judge Reggie Walton of the U.S. District Court for the District of Columbia dismissed just about all the plaintiffs’ claims, although he did direct the Fish and Wildlife Service and National Marine Fisheries Service to complete a couple of procedural steps that were missed the first time around.

Opponents of the project have failed in several other venues, including a federal challenge to the Federal Aviation Administration’s approval of the project and a state court proceeding attempting to invalidate Cape Wind’s contracts with utilities.

One supporter expected the case to play out as the FAA one did. In the previous instance, a district court remanded FAA’s determination that the project would not interfere with air traffic. The agency redid the work to reach the same conclusion, and it was upheld on appeal (E&ENews PM, Jan. 22).

Here, too, Walton did not question the underlying science behind FWS and NMFS decisions but ruled they did not fully complete their work, said Kit Kennedy, clean energy counsel with the Natural Resources Defense Council.

“The court … had nothing negative to say about the substance of the decision on either claim,” Kennedy said in an interview, referring to the FWS and NMFS remands. “There’s no reason to think they’ll change their mind.”

Cape Wind would comprise 130 turbines erected in Nantucket Sound off the coast of Massachusetts with a total capacity up to 468 megawatts. The company welcomed today’s decision.

“These are incredibly important legal victories,” Cape Wind President Jim Gordon said in a statement. “It clears the way for completing the financing of a project that will diversify New England’s electricity portfolio by harnessing our abundant and inexhaustible supply of offshore wind.”

But opponents say project developers should not pop Champagne corks just yet.

“The opposition doesn’t need to win all the lawsuits, but Cape Wind does,” said Audra Parker, executive director of the Alliance to Protect Nantucket Sound. “So this is a major setback for Cape Wind having remands back” to the two agencies.

Others say the remaining decisions will be small speed bumps.

The decision clears away a major hurdle, “with the judge agreeing the environmental review process has been thorough and transparent,” Kennedy said in a statement.

“We’re confident that the remaining limited procedural issues can be addressed swiftly by the federal government,” she added. “The project can now continue moving forward, so it can start delivering clean power and good jobs to the people of Massachusetts.”

Walton did side with plaintiffs on two questions relating to how the project would affect wildlife.

In one instance, the judge ruled that FWS improperly relied on the views of Cape Wind and the Bureau of Ocean Energy Management in determining how to minimize the project’s impact on migratory birds. The service determined that “feathering” the turbines so they do not spin at certain times would reduce bird deaths, but it decided against requiring those measures because BOEM and Cape Wind determined they were not reasonable, as the project would not be financially viable if it had to shut down at those times.

By relying on BOEM and Cape Wind without reaching its own independent conclusion, FWS violated the Endangered Species Act, which requires FWS to make an independent determination on whether mitigation measures are reasonable.

“This is unacceptable,” Walton writes. “While it is certainly possible that the feathering measure would not comport with [a requirement that mitigation be reasonable], the ESA and its implementing regulations require the FWS to make an independent determination.”

PEER Executive Director Jeff Ruch said the ruling vindicated his group’s reason for getting involved in the lawsuit to begin with, and he noted that the question of whether the turbines would need to be shut down periodically cuts to the heart of whether Cape Wind could be viable.

“We’re not opposed to wind power, but if it’s the nation’s energy future, we want to make sure it’s done in accordance with the law and in a way that’s protective of natural resources,” he said. “We got into this because resource specialists in these agencies were prevented from doing their job, and this decision appears to vindicate that conclusion.”

As for NMFS, Walton determined it did not properly account for the possibility that endangered North Atlantic right whales could be injured by ships traveling between shore and the Cape Wind site. NMFS determined that the project “is not likely to jeopardize the continued existence” of the species but not that the creatures would face no impact whatsoever. Therefore, it fell short of an ESA requirement to prepare an “incidental take” statement outlining potential impacts that could occur.

Walton directed FWS to independently determine whether it would be reasonable to require Cape Wind to feather its turbines and told NMFS to issue an incidental take statement on the impacts to the right whale.

Parker said an appeal of the other claims remains a possibility.