The Cape Cod Commission is being squeezed by those who want it to kill Cape Wind Associates’ proposal to build 130 wind turbines in Nantucket Sound and those who don’t want it to review the plan at all.
“If you’re ever going to be in a position to exert your authority and the authority you’re charged with by the Legislature, I would say now is the time,” said Charlie McLaughlin, a lawyer for the town of Barnstable, in testimony yesterday before a subcommittee reviewing the project.
McLaughlin was among a number of Cape Wind’s opponents who chose to emphasize the danger of an oil spill from the proposed power facility’s transformer station or from a ship striking the proposed 440-foot-tall turbines.
But lawyers for the anti-Cape Wind group, the Alliance to Protect Nantucket Sound, zeroed in on local regulation and what they say is the commission’s jurisdiction over the project.
The commission reviews projects that meet certain size thresholds or are referred by its member towns as so-called developments of regional impact (DRIs).
Cape Wind and its supporters have argued that the commission is overreaching its jurisdiction by considering anything outside the three-mile limit of state waters.
They say the state Energy Facility Siting Board is the overriding authority on the proposed wind project’s transmission lines.
The commission decided in May that its authority over the Cape Wind project included transmission lines in state waters and on land in Barnstable and Yarmouth. The commission is mandated to review projects that have an environmental and economic impact on the region.
The commission also said it would consider the impact on the Cape from the turbines planned for federal waters on Horseshoe Shoal.
In a memorandum submitted to the commission, Alliance attorney Patrick Butler wrote “In our opinion, the (state) Energy Facilities Siting Board lacks jurisdiction to review any DRI decision rendered by the Cape Cod Commission, including the DRI on the Cape Wind application.”
The siting board, which is responsible for ensuring the availability of energy at minimum impact on the environment and the lowest cost to consumers, has already approved the project.
Butler argued that because the Cape Cod Commission was established after the siting board, the Legislature would have known to include an exemption if it wanted the Boston-based siting board to have control over a project that also falls under the commission’s review.
According to Butler, commission decisions can be appealed in Massachusetts Land Court or Barnstable Superior Court.
The siting board’s decision earlier this year to override commission rejection of KeySpan’s proposed route for a gas pipeline through Yarmouth, Dennis and Harwich was not tested in court. Therefore it did not establish legal precedent, Butler said.
“This seems like a desperate Hail Mary by the wind power opponents,” said Conservation Law Foundation staff attorney Susan Reid.
The law foundation supports the Cape Wind project.
The point of the siting board is to have control over exactly these types of projects, Reid said.
“The siting board is most needed and most relevant in circumstances like this where unequal treatment may be given to similar projects,” she said.
The commission’s decision not to review a cable line to Nantucket very similar to lines in the Cape Wind project is exactly the type of inconsistent treatment of energy projects that the siting board was meant to eliminate, she said.
Reached by telephone yesterday, a spokesman for the siting board declined to comment on the question of jurisdiction.
State environmental officials have signed off on Cape Wind’s environmental report and federal officials at the Interior Department’s Minerals Management Service are expected to release a draft environmental impact statement by the end of the month.
The Cape Cod Commission must make a decision on endorsing the project by Oct. 7.
“Nantucket Sound is the lifeblood of tourism, fishing and also the economy for Yarmouth and other Cape Cod communities,” Suzanne McAuliffe, chairwoman of Yarmouth selectmen, said yesterday after outlining her objections to the project.
“I do not envy your position.”
By Patrick Cassidy
11 September 2007
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