March was a significant month for the Cape Wind project: the utility-scale wind farm proposed for the waters off of Cape Cod would be the first of its kind in the United States. Last month, Cape Wind secured an additional $400 million in financing, bringing its total fundraising to $1.3 billion or about half of the project’s estimated cost of $2.5 billion.[i] The project also prevailed last month in federal court, defeating numerous challenges to federal agency authorizations of the project.[ii] The wind farm has seen well-organized and well-funded opposition since its proposal in 2001.[iii] After more than a decade of litigation, the project may be approaching a crucial turning point. As a Cape Wind press release puts it: “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.”[iv] But opponents also characterize the outcome as a win for their side too, seeing their narrow gains in the lengthy opinion as further obstructing progress on the planned wind installation.[v]
Plaintiffs in the consolidated case, Pub. Employees for Envtl. Responsibility v. Beaudreu, included a variety of environmental groups, individuals, a Massachusetts township, the Wampanoag Tribe of Gay Head (Aquinnah), and a citizens’ group backed and co-chaired by billionaire industrialist William I. Koch (Alliance to Protect Nantucket Sound). This diverse group brought a litany of charges against several government agencies, including alleged violations of the Administrative Procedure Act (APA); the Endangered Species Act (ESA); the National Environmental Policy Act (NEPA); the Migratory Bird Treaty Act; the Outer Continental Shelf Lands Act (OCSLA); the Clean Water Act (CWA); the Energy Policy Act of 2005; and the Rivers and Harbors Act.[vi]
The court granted summary judgment to the defendants on most of plaintiffs’ challenges, including disposing of arguments regarding alternative locations and technology, navigational safety, historic preservation, sea turtles, and the adequacy of the project’s environmental impact statement (EIS) and biological opinions. Plaintiffs did, however, prevail on two administrative claims.
The court granted summary judgment to the plaintiffs on their claims that the Fish & Wildlife Service (FWS) violated the ESA by failing to make an independent determination as to whether a “feathering operation adjustment” was a reasonable and prudent measure.[vii] The FWS delegated decisionmaking regarding the determination to Cape Wind and to the Bureau of Ocean Energy Management (BOEM). But FWS did not provide any indication that their finding that the measure was not reasonable and prudent since “it modifies the scope of [a] project in a manner that is adverse to the project’s stated purpose and need” was based on an independent determination.[viii] Judge Walton explained:
While collaboration is encouraged, the Joint Consultation Handbook does not support the notion that the FWS should have deferred to the BOEM or Cape Wind when discarding the operational adjustment at issue without at least making clear that it was doing so based on its own independent determination of the issue.[ix]
The court remanded to the FWS to make such an independent determination.
The court also granted summary judgment to the plaintiffs on claims that the National Marine Fisheries Service (NMFS) violated the ESA by failing to issue an “incidental take statement” for North Atlantic right whales. The NMFS did not include an incidental take statement, even though North Atlantic right whales have appeared in the area of the proposed project as well as along routes to be taken by project vessels. “And while the biological opinion states that the ‘NMFS [ ] concluded that the proposed action is not likely to adversely affect right … whales and, therefore, is not likely to jeopardize the[ir] continued existence,’ NMFS1534, the NMFS did not state that incidental take would not occur or was ‘not anticipated.’” Thus, since an incidental take “may occur,” the court concluded that the failure by NMFS to include an incidental take statement with its biological opinion was arbitrary and capricious. The court remanded to NMFS for the issuance of an incidental take statement concerning the take of right whales with its biological opinion, in compliance with the ESA.[x]
The wind project’s latest win comes on the heels of another key victory. In January, the D.C. Circuit upheld the Federal Aviation Association’s (FAA) no hazard determination in the Cape Wind proposal. The FAA “found that the turbines, individually and as a group, would neither exceed the obstruction standards in 14 C.F.R. § 77.17 nor have a physical or electromagnetic radiation effect on the operation of air navigation facilities.”[xi] The FAA’s no hazard determination meant, the court concluded, that no further NEPA analysis was required by the FAA, and that if additional NEPA analysis were to be conducted by FAA it would be duplicative of NEPA analysis being undertaken by the Department of the Interior.
These recent court opinions suggest that opponents of Cape Wind are running out of court options. The Cape Wind saga has been a case study on the use of the courts to stall a locally unpopular project. And what’s more, the opposition in Cape Cod came with a war chest, thanks to billionaire William Koch – a man who owes his fortune to fossil fuels.[xii] So the failure to persuade the courts to put a stop this project is meaningful.[xiii] It would seem the courts are shifting this debate back to the experts in the various federal agencies, inserting themselves only where judicial intervention may be necessary to ensure regulatory compliance.
Indeed, developers have returned to Long Island as a potential site for offshore wind projects. Previous proposals for the New York area have failed (including a proposed wind farm near Long Island that was to be built by FPL Energy but ballooned in cost and never manifested, and more recently, a stalled 350 MW project offshore of the Rockaway Peninsula considered as a “Wind Collaborative” between the local utilities and other stakeholders). But Deepwater Wind, a developer currently looking to site a farm off of Long Island, has already found success in the region, constructing a pilot project off the Rhode Island coast. [xiv] The five-turbine 30 MW demonstration project is located off of Block Island, and could be the first offshore wind farm to generate power in the United States.[xv]
Cape Wind would be the first large-scale offshore wind farm in the United States. The comprehensive opinion finding in favor of Cape Wind and deferring to the federal agencies’ determinations on all but two claims may foreclose not only future challenges to the Cape Wind project, but also to other large-scale offshore wind proposals like the Deepwater proposal for Long Island as well. It would seem the outcome in the most recent Cape Wind courtroom battle has narrowed the scope of possible challenges to future offshore wind proposals, at least for comparable sites in the Mid-Atlantic.
-Daniella Roseman is a General Member on MJEAL. She can be reached at email@example.com.
[i] Erin Ailworth, Cape Wind secures $400 million in financing, The Boston Globe (Mar. 26, 2014), http://www.bostonglobe.com/business/2014/03/26/cape-wind-secures-million-financing/tsSLCZCrijgAdUQHZFcgjM/story.html.
[ii] Pub. Employees for Envtl. Responsibility v. Beaudreu, No. 10–1067 (RBW) (DAR), No. 10–1073, No. 10–1079, No. 10–1238, 2014 WL 985394, at *42 (D.D.C. Mar. 14, 2014).
[iii]E.g., Katharine Q. Seelye, Koch Brother Wages 12-Year Fight Over Wind Farm, The New York Times (Oct. 22, 2013), http://www.nytimes.com/2013/10/23/us/koch-brother-wages-12-year-fight-over-wind-farm.html?pagewanted=all&_r=0 (Profiling William Koch’s efforts to stop the Cape Wind project).
[iv] Cape Wind Wins Major Legal Victories, Cape Wind (Mar. 14, 2014), http://www.capewind.org/news1349.htm.S
[v] Barry Cassell, Cape Wind Says Partial Loss in Court not a Major Setback, RenewableEnergyWorld.com, (Mar. 17, 2014), http://www.renewableenergyworld.com/rea/news/article/2014/03/cape-wind-says-partial-loss-in-court-not-a-major-setback (“The court has validated that federal agencies have taken unacceptable shortcuts in their review of Cape Wind.”).
[vi] See Public Employees, 2014 WL 985394 at *1.
[vii] Such an adjustment would cause the turbine rotors to face the wind and stop spinning in order to reduce the risk of collision with the turbines by roseate terns and migrating piping plovers. Public Employees, 2014 WL 985394 at *25.
[viii] See Public Employees, 2014 WL 985394 at *25; see also Cassell, supra note v (noting that Cape Wind has resisted the feathering adjustment as one that would “destroy the economic feasibility” of the proposed project.).
[ix] Public Employees, 2014 WL 985394 at *26.
[x] Id. at *30.
[xi] Town of Barnstable, Mass. v. F.A.A., 740 F.3d 681, 686 (D.C. Cir. 2014).
[xii] Seelye, supra note iii.
[xiii] See, e.g., Lewis Milford, Court Rules for Cape Wind, Ending a Decade of Failed Opposition, Huffington Post (Mar. 18, 2014, 9:38 AM), http://www.huffingtonpost.com/lewis-milford/court-rules-for-cape-wind_b_4979589.html.
[xiv] Claude Solnik, Deepwater Wind proposing wind farm off Montauk coast, Long Island Business News (Mar. 28, 2014), http://libn.com/2014/03/28/deepwater-wind-proposing-wind-farm-off-montauk-coast/.