Appeals court lets Cape Wind case proceed

Foes challenge Patrick's meddling in contract talks

CAPE WIND, already at death’s door in the wake of decisions by the state’s two largest utilities to terminate their power purchase contracts with the project, absorbed another blow on Monday.

The US Court of Appeals ruled that a district court judge erred in dismissing a lawsuit brought by foes of Cape Wind challenging the Patrick administration’s role in engineering one of the power purchase contracts. The contract for slightly more than a quarter of Cape Wind’s power output was signed in early 2012 by NStar Corp. in return for Patrick administration approval of the company’s merger with Northeast Utilities.

The appeals court decision means the district court will now rule on the actual claim of the Alliance to Protect Nantucket Sound  – that the Patrick administration violated the US Constitution “when it used its influence over NStar’s merger request to bring about NStar’s entry into an above-market wholesale electricity contract with Cape Wind.”

US District Court Richard Stearns dismissed the case in May 2014, ruling that the lawsuit could not proceed because the state is protected by sovereign immunity. The appeals court on Monday held that was not the case.

At the time of Stearns’s decision, Cape Wind issued a press release saying the judge rejected the lawsuit based on technical grounds and the merits. The press release included a quote from Stearns’s decision: “In this case, the governor, the Legislature, the relevant public agencies, and numerous courts have reviewed and approved the project and the power purchase agreement with NStar and have done so according to and within the confines of the law. There comes a point at which the right to litigate can become a vexatious abuse of the democratic process. For that reason, I have dealt with this matter as expeditiously as possible.”

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

Many think the Cape Wind project suffered a fatal blow when NStar and National Grid terminated their power purchase contracts after the wind farm failed to begin construction as required under the contracts by December 31. Cape Wind, however, insists it is operating under the so-called force majeure clause in the contracts, which effectively suspends the construction deadlines because of events beyond the wind farm’s control, in this case a wave of lawsuits brought by opponents.

Jim Gordon, the president of Cape Wind, said in December 31 letters to the two utilities that litigation against the project over the years mounted by the Alliance to Protect Nantucket Sound is “extraordinarily unusual, unexpected, and significant. It has been completely beyond Cape Wind’s control and could not have been prevented or avoided.”