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More Barriers Ahead? Nantucket Group Hires Legal Firepower for Cape Wind Case

The Alliance to Protect Nantucket Sound announced July 10 that constitutional law professor Laurence Tribe will represent the alliance in its June 2 appeal of a May 2 federal court decision that dismissed a multi-party challenge to Cape Wind's power sales contract with NSTAR.

Tribe is a professor at Harvard University and is considered one of the nation's leading authorities on the Constitution and the author of the most-cited treatise on the Constitution, the alliance said. He is expected to argue that the court decision in favor of Massachusetts regulators, NSTAR and Cape Wind by U.S. District Court Judge Richard Stearns misinterpreted the Constitution's Eleventh Amendment in dismissing the case by the alliance, the Town of Barnstable and a group of local businesses and residents.

Stearns, who sits in the U.S. District Court for the District of Massachusetts, ruled in part: “Because the Eleventh Amendment requires that this case be dismissed, there is no reason to consider the additional grounds for dismissal advocated by defendants, other than to note that the result would be no different were the court to rule on the substance of the claims, whether brought independently under section 1983, or directly under the Supremacy Clause, or under the dormant Commerce Clause.”

"The opinion of the district court relied on and quoted what my treatise on the Constitution had said about the Eleventh Amendment to reach a conclusion that neither I nor, much more importantly, the U.S. Supreme Court, would agree with — a conclusion that would make that relatively narrow constitutional provision a veritable engine of destruction for otherwise valid constitutional challenges to state laws, policies, and actions," said Tribe.

That decision was appealed by the alliance and others to the U.S. First Circuit Court of Appeals in Boston. The suit alleges that Massachusetts regulators had discriminated against out-of-state power companies — despite their lower costs — by pressuring NSTAR to buy power from the in-state Cape Wind. The suit alleged that Massachusetts regulators also exceeded their authority in setting wholesale rates for this contract, an action reserved for the Federal Energy Regulatory Commission (FERC).

Any power generated by Cape Wind is guaranteed to be among the most expensive in the nation, the alliance claimed. According to estimates in the NSTAR contract, the purchase of power from the Cape Wind project would raise electricity bills for NSTAR customers by nearly $1 billion over the life of the contract, it added.

"Our case alleges that NSTAR was coerced into signing a no-bid contract that violates federal law, discriminates against affordable green power producers from out of state, and burdens small businesses and municipalities with unnecessarily high electricity costs," said Audra Parker, President and CEO of the alliance. "The State's actions on the Cape Wind contract are even more disturbing given the increasing availability of alternative green energy available at a fraction of the price of Cape Wind."

Neither side had filed full arguments with the appeals court as of July 10.

Tribe served as the first Senior Advisor for Access to Justice for Attorney General Eric Holder in the Obama Administration. President Obama is a former student and research assistant of the professor's. Tribe also argued the first of the two Bush v. Gore Supreme Court cases for former Vice President Al Gore in the disputed 2000 presidential election, and has also argued dozens of other major cases in the Supreme Court.

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

Lead image: Offshore wind via Shutterstock

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