That has done very little to speed the permitting process or to dissuade the very real passions of Parker and her supporters.
All but one of the legal challenges that the alliance and its allied groups have thus far filed have been rejected by the courts. The one success — challenging the Federal Aviation Administration's finding that the project would not impede air traffic — forced the agency to revisit its review in 2011. On Aug. 15, 2012, the FAA once againcame to the same conclusion:
"The proposed construction of the 130 wind turbines, individually and as a group, has no effect on aeronautical operations. Therefore, the FAA concludes that the project, if constructed as proposed, poses no hazard to air navigation."
A challenge to that finding was filed seven days later and is now pending.
"This is personal for me, too, but it's not — what do we have to gain here?" Parker said. "We're just trying to protect the community and the people that live here.
"I've dedicated a decade of my life for this fight," she added. "People believe in this."
Asked if she and her partners could imagine a moment when they might throw in the towel on this fight, Parker doesn't hesitate.
"Yes," she replied. "When we win."
Improving the Process
Department of Energy data on the potential of offshore wind in the U.S. is impressive. It suggests that as much as 4 million megawatts of electricity could be harnessed from the steady breezes blowing on state and federal waters along the coasts of the U.S., as well as in the Great Lakes. That's roughly four times the combined generating capacity of all existing electric power plants in the nation today, according to DOE — and the Obama administration has made it a mission to finally get the industry moving.
Several commercial wind farm proposals or incentive programs — off the coasts of Maine, New Jersey, Delaware and elsewhere — have since joined Cape Wind and are now vying to be the first to become operational, but the odds that any of them will overcome the necessary hurdles during the president's second term are hard to predict.
To help expedite matters, DOE in December announced some $168 million in funding over the next six years for seven offshore demonstration projects. And that funding came on the heels of the Department of Interior's first-ever plans to open up some 164,000 acres along the Atlantic coast for lease sales to commercial offshore wind power developers.
The move is part of the Obama administration's "Smart from the Start" program, launched in 2010 — not long after final federal approval for Cape Wind was issued — and is designed to speed offshore wind power development off the Atlantic Coast. "The Cape Wind lease is an historic milestone in America's renewable energy future, but to fully harness the economic and energy benefits of our nation's vast Atlantic wind potential we need to implement a smart permitting process that is efficient, thorough, and unburdened by needless red tape," Salazar said at the time.
But that program would only help to speed up leasing for offshore wind. In most cases, projects would still need to undergo a full environmental review — and the agonizingly protracted scoping and litigation that so often comes with it.
"I was very happy to see it," said Duffy, the attorney and vice president of the Cape Wind project, referring to the Smart from the Start program. "But it doesn't address the conflicting positions of different agencies or the possibility of multiple agency appeals, perhaps even in different courts. It still doesn’t put a time limit on things."
Reform advocates at Common Good have pointed to other countries with flourishing renewable energy industries, including Great Britain, Denmark and Germany, where processes for regulating and permitting clean energy projects were designed in many cases from the ground up. These so-called one-stop shop systems identify a single government agency as the designated handler of renewable project permitting, and as the sole interface between developers and the government. Strict timelines are in place for reviewing the impacts and considering alternatives, and an ample but clearly defined window for public input and court challenges keeps proposals from becoming bogged down in endless litigation.
Matthew Brown, the Common Good attorney, also notes that in many cases a dedicated administrative court with specialized knowledge of renewable project technology and permitting issues is in place to handle disputes.
"We already have a variety of specialized courts, like bankruptcy court and international trade court," Brown said. "New York City diamond dealers are signed into an informal court system that deals with commercial disputes between diamond dealers. In other countries, challenges to infrastructure projects — these would not go to a court of general jurisdiction, they would go to a court that is very keyed in to the issues — and able to rule more quickly."
Jim Maxeiner, an associate professor of law at the University of Baltimore and an associate director of the school's Center for International and Comparative Law, suggested in an email message that a project like Cape Wind would have been permitted and built far faster in Germany. "Under the German law that prevailed before 2012, two to three years was typical time from initial application to approval, although some applications took as long as six years," Maxeiner noted. "Ten years was unheard of — and in January of this year the law was amended to expedite approvals. I have not seen target times, but I surmise that the idea is to have resolution within one to two years."
Philip K. Howard, the founder of Common Good and the author of several books on the need to simplify regulatory processes in the U.S., has called for a similar "infrastructure super-authority" here. Such a body, Howard recently wrote, would be "created with the mandate to approve certain new projects within one year of application — including roads, bridges, wind and solar farms, and power lines. For interstate projects, the super-authority should have the power to cut through federal, state, and local red tape. Judicial review should be limited to jurisdictional issues, and should be resolved in the timeframe of a preliminary injunction — no more than 60 days."
Despite protestations from a variety of environmental groups, a bill aimed at significantly speeding up the impact review for proposed transportation projects was signed into law in the U.S. last year. Among other things, it calls for smaller projects receiving less than $5 million in federal funds to be excluded from environmental review all together.
But even those calling for infrastructure permitting reform often say the problem isn't necessarily environmental law as written, but the way in which it is implemented. "Proposals for environmental streamlining originating in Congress often overlook opportunities to overhaul policies and procedures within the current legal framework for environmental review," said Petra Todorovich, director of RPA's America 2050 program, in a statement accompanying the "Getting Infrastructure Going" report. "Contrary to current thinking, our study found that more federal involvement, not less, tends to speed up environmental reviews of major projects."
Whatever the solution, it will need to be found quickly if the nation hopes to address the growing climate crisis in a serious way. In its 2011 climate assessment, the National Research Council stated that the nation must cut greenhouse emissions by 80 percent by 2050 merely to stabilize the concentration of heat-trapping gases in the atmosphere. The electricity sector accounts for a third of such emissions, and most experts believe the necessary reductions simply cannot be achieved without a swift transition to cleaner sources of power.
"Our existing environmental laws and regulatory processes no longer achieve their underlying goals of long-term ecosystem conservation," wrote Thaler, the law professor at the University of Maine. "To the contrary, these laws and regulations are supporting a system with increasing greenhouse gas emissions that is actually costing trillions of dollars."
Now that the permits have been obtained and at least two-thirds of the wind farm's output has been purchased under contract, Jim Gordon and his partners are busy seeking financing for Cape Wind. They won't comment on how much it will cost in the end, though estimates typically run between $1 billion and $2 billion. Gordon suggested in a recent phone call that he anticipated having turbines in the water by 2015.
That might still be optimistic. Grid managers have suggested that it could take longer, and in any case, more legal action remains a possibility.
"If I knew from the very beginning that it would take 12 years and cost as much as it did, I would have had to think very long and hard about accepting that challenge," Gordon said. "I've spent 36 years of my life developing energy projects, and our mission has been trying to improve the efficiency and improve the environmental attributes of these types of projects. I was really devoted to trying to contribute to helping transition to a cleaner energy future.
"I am where I am. I can't look back," he added. "I don't know what I would have said 12 years ago because I'm a different person. I'm older. In some ways I'm wiser; in some ways I'm not wiser. At the end of the day, I think this is a very important project."
This article was originally published on The Huffington Post and was republished with permission.
Lead image: Offshore wind via Shutterstock
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