A federal court on Wednesday upheld the Federal Aviation Administration’s (FAA’s) 2012 determination that the 130-turbine Cape Wind offshore wind farm proposed for Nantucket Sound, south of Cape Cod, Mass., posed “no hazard” to air navigation.
The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Town of Barnstable, Mass. v. FAA marks a major development in one of many long-standing legal disputes that has delayed the controversial project by more than 13 years. This suit involves the Department of Interior (DOI), the FAA, citizen groups, and developers of the nation’s first commercial offshore wind farm.
The FAA issued its third “No Hazard Determination” in 2010, shortly after the DOI issued its approval for Cape Wind. But the D.C. Circuit in October 2011 remanded the decision to the FAA, finding that the federal agency erroneously focused just on whether the turbines met the technical definition of obstruction (whether they exceeded 500 feet) without considering separately whether they would interfere with air navigation. The decision handed a legal victory to opposition groups, including the Alliance to Protect Nantucket Sound and the Town of Barnstable.
In July 2012, meanwhile, Republican lawmakers initiated a Congressional investigation to probe whether the FAA disregarded safety concerns and approved the Cape Wind project for political reasons.
But the FAA ultimately issued a public notice of its reinstated project review in February 2012 indicating that “[n]one of the turbines would have an adverse effect on the use of air navigation facilities or navigable airspace,” following that action in August 2012 with its fourth No Hazard Determination. The Alliance to Protect Nantucket Sound challenged that determination, but in a decision on Wednesday, the D.C. Circuit denied its review.
The project has secured all required permits and has been issued a commercial lease and received approval for its construction and operations plan by the DOI. In December, developers signed a major contract with Siemens for the supply of 3.6-MW offshore wind turbines, an offshore electric service platform, and a service agreement for the first 15 years of commercial operations. Cape Wind developers say they have sold 77.5% of the project’s power output in long-term power purchase agreements to National Grid and NSTAR, but it is still in the financing phase.
“The Alliance to Protect Nantucket Sound, the Town of Barnstable and their financial backer—coal billionaire Bill Koch—have failed yet again in their continuing campaign to use the courts to delay the financing of Cape Wind,” Cape Wind Communications Director Mark Rodgers said on Wednesday. The decision is of even more importance because “this was the same court that had previously provided project opponents their sole and temporary relief, opponents have lost all 12 legal decisions in other courts.”
In a statement, the Alliance to Protect Nantucket Sound contested that the federal court’s ruling was “a green light for Cape Wind.” At least four other federal lawsuits are pending in U.S. District Court in D.C., and the group had filed a new lawsuit challenging the project’s “high-priced” contract with NSTAR, it noted. That suit alleges that Massachusetts regulators discriminated against out-of-state power companies despite their lower costs by pressuring NSTAR to buy power from Cape Wind, in-state energy company.
“Cape Wind is an outdated project that would cost ratepayers three times the price of other readily available renewable energy adding billions of dollars in unnecessary electricity fees. While we are disappointed with today’s court decision, it will make no difference in the long run. It becomes clearer every day that Cape Wind should not and will not be built,” the group said.
—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)