Cape Wind Wins Approval, But Lengthy Legal Battle Looms

By: Michael C. Bailey
Published: 04/30/10

It took two federal agencies, nine years, and dozens if not hundreds of public hearings for Cape Wind Associates to reach this moment.

On Wednesday Kenneth E. Salazar, US Secretary of the Interior, announced very simply, “I am approving the Cape Wind project…this is the final decision of the Unites States of America.”

Sec. Salazar made that announcement at a noontime press conference at the Massachusetts State House, backed by members of his staff and Governor Deval L. Patrick.

“On behalf of the hundreds of men and women who will build this project, the thousands of Massachusetts citizens who will benefit from stable electric rates, and the millions of Americans whose security and prosperity depend on energy independence, thank you for this decision. Thank you,” Gov. Patrick said.

“Secretary Salazar’s decision today to approve Cape Wind has launched the American offshore wind industry,” James Gordon, president of Cape Wind said in a press release. “Going first is never easy and Cape Wind is proud of the role we played in raising awareness for what will become a major component of our energy future and in helping the United States develop a regulatory framework for this new exciting industry.” 

First, the footprint would have to be reconfigured to reduce the visual impacts on the Kennedy Compound National Historic Landmark in Hyannis and the Nantucket Historic District.

He also said the number of turbines would have to be reduced from 170 to 130, even though project developers have since 2003 planned to construct 130 turbines; originally the developers expected to erect 200 turbines but almost immediately reduced the size to 170 turbines.

Sec. Salazar further directed developers to conduct additional archaeological surveys of the area, and planned to include a “Chance Finds Clause” in the lease requiring Cape Wind to halt operations and notify the US Department of the Interior of any unanticipated archaeological find.

Previous surveys turned up evidence that Horseshoe Shoal was once above sea level, but nothing to suggest there was ever human habitation. Critics claimed the survey was conducted improperly and on too limited a scope.

During a press conference held Wednesday afternoon, Mr. Gordon said that if the survey turns up any actual artifacts, the state archaeologist will be called in for an opinion. If a turbine is sited for that spot, he said the turbine would be relocated elsewhere within the footprint.

Mr. Gordon did not quote any numbers when asked how many jobs the construction, operation, and maintenance of the facility would create.

He also did not provide a figure when asked about the cost of power, but said that he could have a clearer picture soon as he expects to soon announce a power supply contract with National Grid. Cape Wind and National Grid entered into contract negotiations in December.

Sec. Salazar acknowledged the lengthy, complex, and often contentious federal review process leading to this point, calling it “far from orderly and far from swift,” but believed there was “no question that the review of the project, in my mind, has been thorough.”

Audra Parker, president and CEO of the Alliance to Protect Nantucket Sound, disagreed. In a press conference held by phone, Ms. Parker called Sec. Salazar’s decision “a slap in the face” to ratepayers and especially to the Mashpee and Aquinnah Wampanoag Tribes, which mounted a late effort to halt the project claiming possible negative impacts to cultural and spiritual resources.

Buddy Vanderhoop, a member of the Aquinnah Wampanoag Tribe and owner of Tomahawk Fishing Charters on Martha’s Vineyard, called the approval “a federal embarrassment,” and Clifford Carroll, founder of the anti-wind farm organization WindStop.org, said the federal review was “a corrupt process from the very beginning.”

Both men predicted that Gov. Patrick, who supported the project since entering office, would be voted out this year as a result of that support. Mr. Vanderhoop was not speaking on behalf of the tribe, however; a tribal spokesman said the tribe had no formal statement at this time but indicated it would seek legal relief.

Charles McLaughlin, legal counsel for the Town of Barnstable, said the approval amounted to “a blatant disregard of federal law” in light of an outstanding FAA determination of presumed hazard for the project. This is not a formal finding but a default finding that remains in place until the FAA determines a hazard or no hazard exists.

Review Ends, Lawsuits Begin

Sec. Salazar’s decision is not necessarily the end of the road, or even the beginning of a new road leading to the actual construction of Cape Wind. More likely, the developers will be spending a lot of time in courtrooms as project opponents have vowed to throw up every possible legal challenge to prevent the wind farm from moving forward.

Almost three hours to the minute from Sec. Salazar’s announcement, the so-called “Coalition of Stakeholder Groups” announced its intention to file multiple lawsuits against the project.

“While the Obama Administration today dealt a blow to all of us who care deeply about preserving our most precious natural treasures – this fight is not over,” Ms. Parker said in a press release. “Litigation remains the option of last resort. However, when the federal government is intent on trampling the rights of Native Americans and the people of Cape Cod, we must act. We will not stand by and allow our treasured public lands to be marred forever by a corporate giveaway to private industrial energy developers.”

Involved in one lawsuit: the Alliance to Protect Nantucket Sound, the Three Bays Preservation, the Animal Welfare Institute, the Industrial Wind Action Group, Californians for Renewable Energy, the Oceans Public Trust Initiative -- a project of the International Marine Mammal Project of the Earth Land Institute – and the Lower Laguna Madre Foundation.

The first suit will be filed specifically against the US Fish and Wildlife Service and the Minerals Management Service for violations of the Endangered Species Act.

The Alliance, along with the Duke’s County/Martha’s Vineyard Fishermen Association, will also file suit against the MMS for violations under the Outer Continental Shelf Lands Act. The Town of Barnstable has filed a notice of intent to file a lawsuit on the same grounds.

The Aquinnah Wampanoag tribe is also preparing a legal challenge for violations of tribal rights.

Ms. Parker called the complainants’ case “extremely strong” said the courts would truly settled this contentious issue “based on facts, not on politics.”

Nevertheless, Sec. Salazar expressed confidence that his decision would withstand any and all legal challenges.

To date, several lawsuits have been filed against the project, none of which have proven successful. This week Barnstable Superior Court Judge Robert Rufo dismissed a suit filed by the Alliance and the Town of Barnstable claiming that Ian A Bowles, the state’s executive secretary of energy and environmental affairs, “arbitrarily and capriciously” in signing off on a Final Environmental Impact Report (FEIR) in 2008.

Quick and decisive court victories would be to Cape Wind’s benefit as the developers hope to tap significant federal incentives to offset the cost of construction, which company officials said would be in excess of $1 billion. Funding provided through the American Recovery and Reinvestment Act (ARRA) could reduce the overall cost of building the Cape Cod Wind Farm by 30 percent, but to be eligible the project would have to begin construction this year and finish by 2012.

Mr. Gordon said the company would be meeting with American and European banks to start acquiring capital to fund construction.

Public Officials React

State Representative Matthew C. Patrick (D – Falmouth), one of the very first elected officials to come out in favor of the wind farm, said project approval was “inevitable because there was too much that was right with it from the beginning and the arguments against it were basically untrue.”

He called the opposition’s claims “fabrications created by a well-funded opposition group that used hearsay and innuendo to discredit wind power and the project…the immutable facts are Cape Wind is good for Cape Cod, the Commonwealth of Massachusetts and the United States; for the health of our people, for our environment and for our economy. Nothing will ever change this and the incessant cant from the opposition about the project’s cost is borderline idiotic.”

Congressman William D. Delahunt (D), one of the first federal officials to oppose the project, along with the late US Senator Edward M. Kennedy (D), said Cape Wind “is first offshore wind farm to be built in the wrong place, in the wrong way, stimulating the wrong economies. Offshore wind energy has great potential, but we have missed an opportunity here to do it right.”

“It is simply bad public policy to give ‘no bid’ leases to developers and their Wall Street investors for over 24 square miles of public waters and access to hundreds of millions of dollars in public subsidies each year,” Rep. Delahunt said. “It is simply wrong for the government to reward developers…simply because they got to a site first and are wealthy enough to finance a number of self-serving studies.”

Paul G. Kirk Jr., a Kennedy family friend and the man who filled on an interim basis Sen. Kennedy’s seat after his death last summer, said Sen. Kennedy would have been “disappointed” in the decision.

In the days immediate preceding the announcement, US Senator John F. Kerry (D) said it was “very important for the process to work its way forward. I favor a wind project somewhere in Massachusetts, and I’ve said, again and again, if the process decides that this is the one that it should be, I support moving forward.”

Sen. Kerry’s colleague, US Senator Scott P. Brown (R), in a press release issued before Sec. Salazar even made his announcement, condemned the “administration’s misguided decision to move forward with Cape Wind.”

“While I support the concept of wind power as an alternative source of energy, Nantucket Sound is a national treasure that should be protected from industrialization” that could jeopardize the region’s economy, Sen. Brown said. “I am also skeptical about the cost-savings and job number predictions we have heard from proponents of the project.”

Sen. Brown’s former State House colleague, State Representative Jeffrey D. Perry (R – Sandwich), echoed the Senator’s concerns about the wind farm’s possible economic impacts.

“Over the lifetime of the project, this plan could cost state taxpayers over a billion dollars through subsidies,” Rep. Perry said. “Local Chamber of Commerce leaders are worried this will cost Cape Cod residents jobs and that it will have serious impacts on tourism. I also worry about the effects of this project on the fishing and recreational boating industry.”

Yet proponents not only believe any harm to existing industries will be negligible to non-existent, they assert that Cape Wind will bring new jobs to the Cape and would position Massachusetts to become a national leader in renewable energy technology.

Barbara Hill, executive director of the grass roots Cape Wind support group Clean Power Now, said Cape Wind would establish Massachusetts “as a national model of sustainability and a clean energy future.”

Gov. Patrick expanded upon the project’s affect on the region already, referring to the wind turbine blade testing facility now under construction in Charlestown, which was chose over four other possible sites, and plans by the German company Siemens, from which Cape Wind plans to buy the turbines, to open a new office this year in Boston.

“We are on our way, and if we get wind energy right, the whole world will be our customer,” Gov. Patrick said.

Cape Wind: A History

The Cape Cod Wind Farm project launched in August 2001 as a joint project of the Boston-based company Energy Management Inc. and the Wellesley-based Environmental Science Services Inc., doing business as Wind Management LLC, a.k.a. Cape Wind Associates.

The project was touted as the nation’s first offshore wind farm, and would emulate similar successful projects in Europe.

Cape Wind originally expected the project to cost, according to Mr. Gordon in a 2001 interview, “just north of a half-billion dollars” and be operational by 2005.

What the developers did not anticipate was the vehement, often virulent opposition from Cape Codders, from residents on up to federal lawmakers.

Rep. Delahunt commissioned a report examining the regulatory gaps that allowed the wind farm proper to avoid state review processes, and the findings of that report eventually led to the passage of the landmark Oceans Management Act of 2008. State Senator Robert A. O’Leary (D – Barnstable) authored that legislation.

Initially the opposition focused on the project’s aesthetics. Early wind farm foes claimed the wind turbines would be an eyesore that would reduce the value of homes located along the southern coast of Cape Cod, but soon the arguments expanded to include the development’s potential impacts on the region’s all-important summer tourism industry, commercial and recreational activities in the sound, nautical and aerial navigation, and wildlife.

Late in 2001 the fight heated up with the founding of the Alliance to Protect Nantucket Sound, which in 2002 filed the first of several lawsuits filed against Cape Wind in an effort to block the construction of a data collection tower on Horseshoe Shoal.

To date, none of the lawsuits filed against Cape Wind have ended favorably for wind farm foes.

The year 2002 also marked the beginning of the review process that effectively ended just this week. Because offshore wind development was at the time an unexplored industry in the US, the country had no established regulatory structure, nor even a designated agency to conduct a review.

The task of reviewing the project originally fell to the US Army Corps of Engineers due to its standing authority over construction in navigable waterways (as per the Rivers and Harbors Act of 1899). In November 2004 the Army Corps released a 4,000-page draft Environmental Impacts Statement (EIS), and nine months later the permitting process is, with the passage of the Energy Policy Act, shifted to the US Department of the Interior’s Minerals Management Service (MMS), which has regulatory authority over offshore oil and gas drilling operations.

The MMS released its draft EIS in January 2008, a 700-plus-page document that was generally favorable toward the project. The final EIS was released in January 2009 and Sec. Salazar originally announced that he would issue his record of decision that spring, then pushed it back to late 2009.

The final countdown began in January of this year when wind farm foes made what project supporters viewed as an 11th-hour attempt to derail the process.

The Mashpee and Aquinnah Wampanoag Tribes claimed the turbines would compromise its spiritual value; the turbines would be visible from shore and would therefore infringe upon tribal rites and customs involving the sound. The construction process could also destroy sites of potential archaeological significance, the tribes claimed.

This challenge led to the US National Park Service announcing that Nantucket Sound was eligible for the National Register of Historic Places (NRHP) as a “traditional cultural property, and as an historic and archaeological property associated with and that has yielded and that has the potential to yield important information about the Native American exploration and settlement of Cape Cod and the Islands.”

In response, Sec. Salazar ordered stakeholders to meet and attempt to arrive at a compromise by March 1, and warned both sides that if no compromise could be reached he would proceed with issuing his decision by the end of April.