Court: 2 Cape Wind approvals flawed

Ruling leaves intact wind farm’s lease

A federal appeals court on Tuesday ruled that the US Department of Interior erred twice in granting a key environmental approval for Cape Wind, but the judges decided not to revoke the wind farm’s lease or its other regulatory approvals.

Cape Wind, which is fighting on Beacon Hill for the right to bid on offshore wind contracts envisioned by pending energy legislation, said it was pleased with the decision and insisted the two matters cited by the court could be rectified by regulators fairly quickly.

Audra Parker, the president and CEO of the Alliance to Protect Nantucket Sound, which appealed the Interior Department’s decision, called the ruling a victory and said Cape Wind would now have to “go back to the drawing board.”

The decision comes as Cape Wind is struggling to get back on track in its efforts to build a wind farm in Nantucket Sound. Cape Wind came close to beginning construction in 2014, but ultimately was unable to secure financing and as a result lost two key power purchase contracts with Eversource and National Grid. The company is now seeking to bid on new offshore wind contracts proposed in pending Beacon Hill energy legislation.

Political opponents are working to keep Cape Wind out of the bidding process. The House energy bill is written in a way that would bar Cape Wind from competing for offshore wind contracts, while the Senate version of the bill doesn’t include that language. Three House and three Senate lawmakers will attempt to resolve differences between the two branches this month.

Tuesday’s decision came about after the Alliance to Protect Nantucket Sound challenged the Interior Department’s 2009 approval of a Cape Wind environmental impact statement, alleging the federal agency violated six laws in granting its approval. All of the challenges were rejected by a lower court; in its decision, the federal appeals court in Washington sided with the lower court on most of the disputes, but ruled in favor of the Alliance to Protect Nantucket Sound in two areas.

The court held that the Interior Department violated the National Environmental Policy Act by relying on inadequate geophysical and geotechical surveys, which are used to determine whether the sea floor can support large structures. “By relying solely on data so roundly criticized by its ‘own experts,’ the bureau failed to fulfill this duty,” the opinion said.

Jim Gordon, the developer behind Cape Wind, said his team did extensive geophysical surveys on all of the turbine locations in 2012. Presumably, he said, the Interior Department will now review the adequacy of those surveys in revisiting its earlier decision.

The court also held that the US Fish and Wildlife Service acted in an “arbitrary and capricious” manner when it decided not to adopt a bird-protection proposal without first considering arguments put forth by the Alliance to Protect Nantucket Sound. The Fish and Wildlife Service initially recommended shutting down the project’s turbines during poor visibility periods to reduce the deaths of roseate terns and piping plovers. That proposal was dropped after concerns were raised about the economic impact of shutdowns on Cape Wind.

The appeals court held that the flawed review process violated the Endangered Species Act and required the Fish and Wildlife Service to conduct another review.

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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.

The ruling vacates the federal government’s approval of Cape Wind’s environmental impact statement but does not tamper with the project’s lease or other regulatory approvals. “Delaying construction or requiring Cape Wind to redo the regulatory approval process could be quite costly,” the ruling said. “The project has slogged through state and federal courts and agencies for more than a decade. Meanwhile, Massachusetts’s renewable energy requires continue to increase. Allowing the project to move forward could help meet these requirements.”

In a statement, Cape Wind described the project as “the most advanced utility-scale offshore wind project in the US, and this decision provides the roadmap to move the project to completion.”