On Thursday the Cape Cod Commission will decide whether to oppose a wind farm planned for Nantucket Sound.
For foes of Cape Wind Associates’ plan to build 130 wind turbines on Horseshoe Shoal, a rejection of the project by the regional land use agency would be a battle won in the ongoing regulatory struggle over the wind farm.
But a denial on procedural grounds may be part of Cape Wind’s strategy to navigate the regulatory process, Barnstable and Yarmouth officials said this week.
“They were doing this as a formality,” Suzanne McAuliffe, chairwoman of the Yarmouth selectmen, said of Cape Wind’s dealings with the commission. “It wasn’t really important to them whether they got Cape Cod Commission approval.”
If the commission rejects the project based on faulty timeliness or lack of information, Cape Wind could say the wind farm was not denied on its merits, a claim that might be useful to the company in future regulatory battles, McAuliffe said.
A commission subcommittee has recommended against the wind farm, citing incomplete information on the project and Cape Wind’s refusal to grant multiple time extensions for commission review.
“It’s going to leave the appellate record wide open for further judicial involvement,” Charlie McLaughlin, an attorney with the town of Barnstable, said of the draft decision approved by the subcommittee Tuesday.
McLaughlin said a more decisive commission rejection of the wind farm project on its merits would be a boost for other legal challenges to Cape Wind, including from local towns. He added a decisive rejection could be based, in part, on the impact of portions of the wind farm that would be in federal waters.
In May, the commission voted to include federal waters in its review of the wind farm. Otherwise, the commission’s jurisdiction would have been limited to state waters, which extend three miles from shore. But time constraints made it difficult for the commission subcommittee to examine issues in federal waters, so most of the panel’s 62-page draft decision focuses on the electrical transmission lines that would run through state waters and on land in Yarmouth and Barnstable.
Given the lack of complete information and time restrictions, the commission subcommittee made the right decision to recommend rejecting the Cape Wind project largely on procedural issues, according to Patrick Butler, an attorney representing the leading anti-Cape Wind group, the Alliance to Protect Nantucket Sound, and a frequent advocate before the commission. “I believe the commission is doing what is appropriate under the circumstances,” Butler said. “They have to treat it like any other case.”
And the comprehensive nature of the draft decision should stand up to any court challenge, Butler said. “I think its a very defensible document.”
At the subcommittee’s meeting Tuesday, Cape Wind vice president Dennis Duffy said the company is being held to a different standard than other projects, including electrical transmission lines to Nantucket that the commission chose not to review.
“The subcommittee has not stated any credible basis for the drastically different approach in this proceeding,” Duffy wrote in a statement prepared for the commission panel.
Duffy also said the commission should approve the project on the condition that Cape Wind provide further information at a later date, as was suggested by some commission staff. “Refusing to act when items could be fully addressed as contingencies, and confirmed by the staff analysis, suggests an agenda of obstruction,” he wrote.
Cape Wind officials maintain the commission has all the information needed to make a decision. They also contend jurisdiction over the project rests with the federal and state governments.
A draft environmental impact statement from the U.S. Department of Interior’s Minerals Management Service is expected out by the end of the year. Cape Wind has repeatedly said the federal review will contain much of the information sought by the commission and several Cape towns.
“Basically, Cape Wind has put the Cape Cod Commission in an awkward position,” said Glenn Wattley, chief executive officer for the Alliance. “This is a case of Cape Wind wanting to put the cart before the horse.”
By “uncoupling” the commission’s review from federal review and asking for conditional approval from several agencies, Cape Wind has made the process unduly complicated, Wattley added.
Cape Wind has presented all the information that is currently available, said the company’s spokesman, Mark Rodgers.
“While the (draft federal review) is going to be very comprehensive, there are a lot of things that are not going to be finalized,” he said.
Some of the commission subcommittee’s requested information will be unavailable until a final environmental impact statement from the Minerals Management Service is released next year, Rodgers said.
“Essentially, (the commission is) asking to be the final permitting agency to act,” he said. “That just isn’t necessary.”
Two state agencies have already signed off on the project. The Energy Facilities Siting Board, which is responsible for reviewing utility projects, approved Cape Wind’s proposal in 2005 and the Executive Office of Environmental Affairs approved the project in March.
The siting board overruled a commission decision on the KeySpan gas pipeline that is currently being installed in Yarmouth. The siting board’s ruling on the pipeline was not challenged in court. “They obviously think they have a life boat at the (siting board) and they don’t particularly care what the commission thinks,” McLaughlin said of Cape Wind’s apparent strategy for dealing with the commission review.
A showdown created by the siting board’s approval of Cape Wind and a Cape Cod Commission rejection would be resolved in the state Supreme Judicial Court, according to McLaughlin. “The legal question will be, did the Legislature know what it was doing when it created the commission and gave the commission this overall authority over all things Cape Cod?” he said.
By Patrick Cassidy
14 October 2007
|Wind Watch relies entirely
on User Funding