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Cape Wind Says Partial Loss in Court not a Major Setback

Opponents of the Cape Wind project were celebrating a March 14 ruling from the U.S. District Court for the D.C. Circuit that the U.S. Fish and Wildlife Service and the National Marine Fisheries Service need to revisit Cape Wind's impacts on migrating birds and endangered right whales in Nantucket Sound.

"This is good news for environmentalists and for all of us who want to see the fragile and unique environment of Cape Cod protected," said Audra Parker, President and CEO of the Alliance to Protect Nantucket Sound. "The court has validated that federal agencies have taken unacceptable shortcuts in their review of Cape Wind."

The court ruled that the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) violated the Endangered Species Act (ESA) in their reviews of the offshore wind project.

The court remanded the case to FWS to independently evaluate a shutdown of turbines during migratory bird season. FWS has acknowledged this as the most effective measure to reduce bird mortality; however, Cape Wind has resisted the measure as one that would destroy the economic feasibility of its proposed project, the project opponents said.

The court also ruled that NMFS can no longer avoid fully evaluating impacts to right whales and must formulate and issue an incidental take statement because of the documented presence of this highly endangered species in the area and the potential for Cape Wind to cause harm. In recent years, rare right whales have been seen in the area.

The lawsuits, which have been consolidated into one case, were filed by a group of concerned advocates for the environment including Public Employees for Environmental Responsibility, the Cetacean Society International, Three Bays Preservation, the Town of Barnstable, the Alliance to Protect Nantucket Sound and several others. The plaintiffs have long argued that Nantucket Sound is the wrong place for this project.

The court ruled against the coalition of environmental advocates and other groups on several other issues but the groups said that those decisions may be appealed.

Covering 25 square miles of Nantucket Sound between Cape Cod, Martha's Vineyard and Nantucket, Cape Wind would consist of 130 wind turbines, each standing 440 feet tall.

A new lawsuit was filed recently in U.S. District Court in Boston challenging NStar's contract to purchase Cape Wind's power for alleged violations of the Federal Power Act and the US Commerce Clause, the opponents noted.

Said the March 14 D.C. court decision from Judge Reggie Walton: “[T]he Court grants summary judgment to the plaintiffs on their claims that the FWS violated the ESA by failing to make an independent determination about whether the feathering operational adjustment was a reasonable and prudent measure, and the Court will therefore remand this case to the FWS for it can make the required independent determination on this point. The Court also grants summary judgment to the plaintiffs on their claims that the NMFS violated the ESA by failing to issue an incidental take statement for the take of North Atlantic right whales, and the Court will therefore remand that issue to the NMFS for the issuance of an incidental take statement on this subject. Otherwise, the Court grants summary judgment to the defendants on the plaintiffs’ remaining claims. Finally, the Court denies the plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike.”

Cape Wind Says This Was Mostly a Victory

Cape Wind said in a March 14 statement that it actually won some points. Judge Walton upheld the Department of the Interior’s review and approval of Cape Wind, a thorough and comprehensive permitting process that took 10 years, the company noted. "The Court soundly rejected the plaintiffs’ request to vacate the granting of the nation’s first offshore wind lease by the Department of the Interior to Cape Wind," it added.

Judge Walton rejected a long list of legal claims project opponents had raised, including arguments over navigational safety, alternative locations, alternative technologies, historic preservation, Native American artifacts, sea turtles, and the adequacy of the project’s environmental impact statement and biological opinions.

"In two narrow instances, Judge Walton has asked Federal agencies to clarify its findings on whales and birds," Cape Wind noted. "The order indicates that the case is administratively closed until the Court is provided with the clarifications. Cape Wind expects these two compliance actions to be minor agency administrative actions that will not impact Cape Wind’s financing schedule."

“These are incredibly important legal victories for Cape Wind. It clears the way for completing the financing of a project that will diversify New England’s electricity portfolio by harnessing our abundant and inexhaustible supply of offshore wind,” stated Cape Wind President Jim Gordon.

Cape Wind said its comprehensive and rigorous permitting review by seventeen federal and state agencies spanned ten years and produced an administrative record of over 400,000 pages. The key findings of these reviews were that Cape Wind would provide significant environmental, economic and energy benefits to Massachusetts and the nation.

Cape Wind said it has consistently won a series of legal challenges brought by project opponents, largely funded by coal and petroleum coke magnate William Koch. Most recently there was a victory in federal court upholding the Federal Aviation Administration's fourth approval of Cape Wind.

Cape Wind will be America’s first offshore wind farm. Cape Wind has long term Power Purchase Agreements with National Grid and NSTAR, the two largest electric utilities in Massachusetts. Cape Wind is purchasing a marina on Falmouth harbor on Cape Cod to serve as its maintenance and operations facility.

This article was originally published on GenerationHub and was republished with permission.

Lead image: Offshore wind via Shutterstock

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