In late March, the state issued a certificate of adequacy to Cape Wind Associates for its final environmental impact report regarding a proposed wind farm in Nantucket Sound.
Now, three separate groups are poised to challenge the state’s decision in court.
The town of Barnstable, the Alliance to Protect Nantucket Sound and a citizens group led by Hyannis attorney John W. Spillane have all filed notices of intent to sue regarding the decision. While not lawsuits, the notices, which were filed in Barnstable District Court, allow the groups to file suits if the project receives certain state or local permits.
“All it does is reserve a place at the table,” said Charles McLaughlin, the assistant town attorney for Barnstable, who said such notices are required under statutes of the Massachusetts Environmental Protection Act.
The state certificate is not an approval of the project but does mean that Cape Wind’s 5,000-page environmental report is good enough to be used as a reference document for state and local permitting agencies. The certificate also triggers such local reviews, including that of the Cape Cod Commission.
Barnstable’s six-page notice faults the state’s Executive Office of Energy and Environmental Affairs and its secretary, Ian Bowles, in a number of areas. Among them, the notice alleges that Bowles’ “lack of objectivity” and “pre-conceived, politically-determined agenda” denied the town due process on the issue. It also says Bowles’ office did not properly exercise its MEPA jurisdiction when it chose to review the electrical cables in state waters rather than the entire 130-turbine proposal, most of which is in federal waters.
The notice also refers to ongoing federal review by the Minerals Management Service and labels the state certificate “premature.”
Audra Parker, director of strategic planning for the Alliance to Protect Nantucket Sound, said her organization’s challenge focused on two major points: the scope of review and what she called an insufficient focus on alternative sites for the wind farm.
Regarding scope, Parker echoed much of Barnstable’s complaint when she said the state did not adequately assess the impact to Massachusetts waters from a project which originates in federal waters.
“It’s too narrow a view of their jurisdiction,” she said.
Like McLaughlin, Parker said the notices are not lawsuits but placeholders for possible future action.
“It is not an active lawsuit,” said Parker. “It preserves our legal rights in the future.”
Spillane, however, made clear that his Ten Taxpayers Group intends to move forward with litigation, much as it did years ago in trying to stop Cape Wind’s construction of a data tower in the Sound.
“Absolutely, it’s going to be lawsuit,” said Spillane.
The notice of Spillane’s group alleges that Bowles failed to exercise his appropriate authority in the MEPA process. Furthermore, it charges that Bowles abused his power when it came to state review agencies.
Robert Keogh, a spokesman for Bowles’ office, said groups would have to wait until permits are issued before filing actual suits and that the suits would be against the permitting agencies, not Bowles or his office. However, he said Bowles, through his office, reviewed the application in full compliance with MEPA statutes.
“The secretary has full confidence that his decision will be upheld in the courts,” Keogh said.
Mark Rodgers, spokesman for Cape Wind, said the company is “confident that the decision of the Commonwealth is correct.”
Clean Power Now, a non-profit advocacy group which supports the proposed wind farm, sees the potential litigation as a delay tactic from project opponents.
“We’re disappointed,” said Barbara Hill, Clean Power Now’s executive director.
“These types of actions are obstructionist and they delay a process we believe has great integrity.”
Speaking as a Centerville resident, Hill added she expected the Alliance, a vocal opponent of the wind farm, to file a lawsuit but was “even more disappointed” in the town.
“Who’s going to pay for this [litigation]?” Hill asked.
While not speaking to the specific notices filed, Barnstable County Clerk of Courts Scott Nickerson said, in general, those wishing to file a lawsuit against the state or one of its entities must file a notice beforehand.
By Craig Salters
3 May 2007
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