Salazar Hears Wampanoag Worries on Cape Wind

It is an absurdly paradoxical photo, and a perfect fit in the tragicomic nine-years-and-counting Cape Wind narrative. A Coloradoan in a cowboy hat aboard a vessel in windswept Nantucket Sound, meets a New England tribe who have fished from and worshipped over the waters below for centuries, to talk about planting hundreds of windmills that will stand, spin and deliver energy long into the shared futures of the Coloradoan, the tribe and the rest of New England. Go ahead, choose your favorite literary, cultural, or historical theme and run!Senator Ken Salazar by greghauenstein.

 The Coloradoan, Interior Secretary Ken Salazar, came by way of Washington, and was in town to give the Wampanoag what the Boston Globe described as “a hearing” on the Cape Wind turbine farm. The Wampanoag – representing two distinct tribes, the Aquinnah on Martha’s Vineyard and the Mashpee on Cape Cod itself – came (by some accounts) out of the woodwork as the public process on Cape Wind siting entered its ninth year.::continue:: They publicly announced their opposition to the proposed wind farm location only in late 2009, based on its interference with traditional tribal religious observances and burial grounds.

To an already controversial project, the tribes’ opposition added the politically sensitive subject of Native American claims to tribally significant lands outside of reservation boundaries set – with little regard to such things – long ago. Many Cape Wind opponents lined up to support the tribes, the Massachusetts Historical Commission ruled that the tribal claims had merit, and the National Park Service decided that the Sound is eligible for inclusion on the National Register.

But, investigation of the claims will inevitably delay the project further, just when it appeared to have emerged from a final judicial and administrative scrum. And, project proponents are chafing at characterizations like the Globe’s, namely that the tribes were entitled to a “hearing.”

Cape Wind’s boosters argue that there has been a nine-year public approvals process, complete with administrative and judicial adjudication of local, state and federal zoning, environmental and legal questions. Further, there is nothing in the law that entitles a party to have a cabinet secretary travel to their state, visit them on a beach at sunrise for a religious observance, and hear their concerns personally. No matter the merits of a claimant’s position or the presence of indisputable historical evidence of unfair treatment (as with indigenous populations in the US), that is well beyond the scope of “hearings” contemplated in any of the applicable law.

Cape Wind has taken on dimensions of the absurd that no one could have foreseen. The project has split the green community, with in-fighting over whether the need for increased renewable electricity capacity trumps concerns about ecological impacts. The arguments are not unfamiliar. The same battle is raging nationwide with almost every proposed wind farm, but Cape Wind has taken on additional significance because of the global symbol of American green leadership that the highly visible farm would project.

Cape Wind provides one of the most widely-overlooked yet richly ironic twists to Scott Brown’s recent election to the US Senate. Conventional wisdom holds that he rode a populist wave of anti-Washington sentiment in middle class suburbs and ex-urbs to deliver the GOP’s first Senate victory in Massachusetts in forty years. Indeed, a Republican will now serve out the term begun by Ted Kennedy in 2006, a seat the Liberal Lion held for nearly a half-century.

Shocking? Maybe not, if one-time House Speaker (and Massachusetts political legend of the Kennedy class) Tip O’Neill’s golden rule holds up: “all politics is local.” The most contentious “local” issue in statewide Massachusetts politics right now? Cape Wind, without a doubt. And, here’s the irony, Republican Brown has the same position on the wind farm that Senator Kennedy had: opposed. Brown’s Democrat opponent Martha Coakley gave the project a tepid vote of confidence.

Indeed, Massachusetts politics is full of bluster about wind right now, and the Commonwealth is leading the way in fighting the legal, legislative and political battles that many states are preparing to undertake to reform the land use and zoning approvals processes to better accommodate emerging and unique renewable energy uses.

Governor Deval Patrick’s administration is seeking to advance a wind energy zoning siting reform statute and has proposed to create pre-determined offshore overlay zoning districts for wind farms. Massachusetts wants to be a green leader, both in policy and economics, and Patrick sees easing zoning requirements as a way to bring more green power, green tech research and development, and green credibility to the Bay State – quickly.

The push to change the way energy facilities – and support infrastructure – is sited is a national phenomenon. In 2009, the 4th Circuit overturned the Federal Energy Regulatory Commission’s interpretation of its own “backstop authority” to supersede local zoning power in helping to accelerate siting of high-voltage transmission infrastructure located in certain priority corridors. The power, granted by the Energy Policy Act of 2005, allows FERC to assert authority where a local body in charge of permitting has “withheld approval for more than one year.”

FERC tried to assert the authority to overturn denials by local bodies, arguing unsuccessfully that a denial certainly constituted approval withheld. But, the Fourth Circuit Court of Appeal rejected the argument as nonsensical, and affirmed that the intent of the legislation was to give FERC the ability to step in where decisions had been delayed, giving local bodies a burning platform that never existed and which allowed for attenuated approvals timelines marked by delay. It was not a grant of power to overrule local zoning.

Many saw the Piedmont decision as a victory for citizens and the environment, beating back a push to centralize authority that would result in large-scale development of transmission lines and clearing of the necessary rights of way. Similar arguments are being made against the Massachusetts’ push for zoning reform. The day after Salazar’s visit to Cape Cod, one Globe reader wrote that the Governor’s proposal would remove “public scrutiny and public voice” from the approvals process.

Cape Wind proponents would doubtless disagree. To them, nine years is plenty of scrutiny. The Wampanoag had the chance to make their voices heard all along. How much extra-legal process should they be afforded? In the end, that seafaring cowboy will decide.   

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An award-winning energy and environmental law scholar, Joe combines professional experience in utility sector government, community and regulatory affairs with a background in security clearance-required military intelligence and offers unique insight and complex analysis of energy infrastructure, technology and policy in national security, international trade and climate change and carbon-restrained economics contexts.Joe was awarded the Suffolk University Jurisprudence Award for Outstanding Scholarship in Environmental Law for his work analyzing the pathways and obstacles to adoption of renewable energy in state, federal and international energy policy. ”Home Rule on the Ropes,” his paper on renewable energy zoning in Massachusetts is on SSRN’s Top Ten lists for the Journal on Urban Economics & Public Policy and the Journal of Public Policy. And, he was awarded Suffolk Law’s 2009-2010 McCormack Scholarhship in recognition of excellence in research and writing, including his paper – ”Coming up ACES?” – on the NAFTA and WTO implications of the national renewable portfolio standard limitation proposed in the Waxman-Markey energy bill.A research assistant on Westlaw’s definitive energy regulation reference, ”The Law of Independent Power,” Joe is also a former state legislative aide and US Army linguist who tested at professional profiency in Russian and Spanish.His writing on law, politics and policy is also featured on the blog at www.RedGreenandBlue.org and www.CleanTechies.com.Joe lives in Boston with his wife and two young children. In his spare time, Joe is the founder and curator of the corporate social responsibility network on LinkedIn, and is an avid runner who recently posted a personal best in in the Walt Disney World Half-Marathon in Orlando.

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