Federal Judge Dismisses Most Claims Against Cape Wind

In a decision released Friday, a federal judge largely sided with the United States Government, finding that the government’s review and approval of the Cape Wind project was lawful and thorough.

Cape Wind is a 130 turbine off-shore wind farm proposed for the middle of Nantucket Sound.

The lawsuit consolidated multiple claims brought by the Alliance to Protect Nantucket Sound and others against several government agencies, including the Department of the Interior, which approved the Cape Wind project in 2010.

In more than 20 of these claims, US District Court Judge Reggie B. Walton sided with the government and Cape Wind; but in two cases Judge Walton found the government did not properly adhere to the law.

Cape Wind is calling the judgment a victory. “There is no question who won on Friday,” Cape Wind spokesman Mark J. Rodgers said yesterday. Regarding the two instances where the judge sided with the plaintiffs, Mr. Rodgers said, “We see both issues as narrow administrative matters.”

“There are a number of investors who have followed this case closely,” Mr. Rodgers said. These investors “share our opinion” of the case, he said. “The decision provides us with what we need to complete financing of the project in terms of resolution of issues.”

The Alliance to Protect Nantucket Sound is calling the decision a “landmark win for the environment.” Alliance president Audra L. Parker said yesterday that Cape Wind is “trivializing” the two instances where the judge sided with the Alliance.

The two matters where the judge found in favor of the plaintiffs involve shutting down the turbines during peak bird migration times, and the project’s impact on right whales.

According to the decision, the federal Fish and Wildlife Service proposed shutting the turbines down during certain times to “reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area.”

However, the Wildlife Service then rejected their proposed option, citing claims made by Cape Wind and the Bureau of Ocean Energy Management (BOEM) that the shut-downs would jeopardize the project’s financial viability.

The court ruled that “while it is certainly possible” that Cape Wind and BOEM’s analysis is legitimate, under the Endangered Species Act the Fish and Wildlife Service is required to do its own independent economic analysis before it can reject the shut-down option.

Mr. Rodgers said that Cape Wind’s position is that shutting down the turbines would be an “over-reaction” to a “remote risk.”

Regarding right whales, the court heard two arguments from the plaintiffs. First, that the National Marine Fisheries Service (NMFS) erred in determining that Cape Wind’s impact on right whales will be “insignificant and discountable.”

The court upheld that determination, stating that “The plaintiffs’ arguments to the contrary fall flat.”

But the court did side with the plaintiffs when they argued that, although right whale impact was anticipated to be “insignificant,” because it was not determined to be “nonexistent,” the NMFS should have included a document called an “incidental take statement” in its review of the project.  

Judge Walton agreed. “The NMFS included no incidental take statement for right whales, despite the fact that the whales have traversed the Cape Wind project area and appeared along routes that will be traveled by project vessels... its failure to do so was arbitrary and capricious,” he wrote. 

The total global right whale population is estimated at 400 whales, Ms. Parker pointed out, so any impact would be serious.

In more than 20 other instances, the judge sided with the government and Cape Wind. These included claims that Cape Wind poses a navigational hazard, that the government’s analysis of alternatives was insufficient, and the that project’s impact on birds and fishing were not thoroughly assessed.

Joining the Alliance to Protect Nantucket Sound as plaintiffs in the case were the Town of Barnstable, the Wampanoag Tribe of Gay Head (Aquinnah), and the Public Employees for Environmental Responsibility. 

Ms. Parker said the Alliance to Protect Nantucket Sound is evaluating which decisions to appeal.

Mr. Rodgers said Cape Wind has so far announced $900 million in financing for the project, and there are “other announcements coming.” He said the company hopes to begin preliminary construction by the end of the year.

Cape Wind is not disclosing the project’s total cost, but Reuters news service gave the project a $2.5 billion price tag.

Cape Wind plans to stage its operational and maintenance division out of Falmouth Harbor. Mr. Rodgers said the company has a purchase and sale agreement to buy East Marine on Falmouth Heights Road, and will close on that deal once financing for the project is secured.

Mr. Rodgers said Cape Wind will use about half of the marina’s boat slips and rent the remainder. It will continue to operate the fuel dock, he said.

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