filed: September 1, 2010 • Editorials, Massachusetts

Of rights and wind

Credit: By Boston Herald Editorial Staff, www.bostonherald.com 1 September 2010 ~~

There is enormous wisdom coming out of the Supreme Judicial Court in yesterday’s Cape Wind ruling.

Sad to say that wisdom was found in the dissenting opinion offered by Chief Justice Margaret Marshall and will, therefore, be little more than a footnote in the long and tortured history of this project.

Project opponents had challenged a decision of the state Energy Facilities Siting Board that granted the project permission to run power transmission lines through state waters – permission essential to the future of the project. Cape Wind appealed to the state board after the Cape Cod Commission had rejected its proposal.

“It is not our role,” Marshall wrote, “to evaluate whether as a matter of sound policy the project should be constructed. Rather, we must determine whether the approval process of the Cape Wind project comports with the laws of the Commonwealth. It does not.”

In fact, she added, the court’s majority “establishes a dangerous and unwise precedent, which has far-reaching consequences. A wind farm today may be a drilling rig or nuclear power plant tomorrow.”

There are lots of reasons to oppose this project, including the increased costs to ratepayers in the years ahead.

But yesterday’s SJC decision points to yet another. In its efforts to ensure the future of this particular project the Patrick administration has run roughshod over the centuries-old public trust doctrine.

As the chief justice noted, “The stakes are high. As we have recently seen in the Gulf of Mexico, the failure to take into account in-state consequences of federally authorized energy projects in federal waters can have catastrophic effects on state tidelands and coastal areas, and on all who depend on them.”

There will be little satisfaction for the chief justice or anyone else in the years ahead to say “we told you so.” But this erosion of rights long held by the people of this commonwealth is now part of the lasting legacy of Cape Wind.

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