The town of Barnstable has jumped into the fray over Cape Wind’s proposed 130-turbine wind farm in Nantucket Sound.
Last week, the town filed a complaint in Barnstable Superior Court claiming that the Cape Cod Commission – and not the Massachusetts Energy Facilities Siting Board – has the final word on whether Cape Wind can link its electric cables to the NStar switching station off Mary Dunn Road in Barnstable.
The commission denied that permission Oct. 19 and Cape Wind filed an initial petition (appeal) with the siting board Nov. 21.
“We need to address what we feel was a faulty decision by the Cape Cod Commission,” Mark Rodgers, communications director for Cape Wind, said at that time.
Barnstable, which has opposed the project, decided not to wait for the siting board to sift through all the information.
“We didn’t want to go through lots of hearings that all deal with the siting board and all the expenses associated with that if the board doesn’t have jurisdiction over the permits that Cape Cod Commission appears to have jurisdiction over,” said assistant town attorney Charles McLaughlin. “It seemed a whole lot more efficient to bring this action and get a resolution.”
The siting board’s main job is to license the construction of large power plants, transmission lines, natural gas pipelines and gas storage facilities. It granted Cape Wind the license to link with the state’s electric system in 2005 after a 32-month review. Chartered to make sure Massachusetts has reliable energy with minimal environmental impact and the lowest possible cost, the board is chaired by Secretary of Environmental Affairs Ian Bowles and includes eight other members.
The siting board has overruled the commission before, on June 22, 2007. In that case the commission denied KeySpan Energy Delivery New England permission to construct a 13.1-mile gas pipeline through the towns of Barnstable, Yarmouth, Sandwich, Dennis and Harwich.
The specific request was for “Phase 1,” the first 12,000 feet of the project that would begin at KeySpan’s liquid natural gas facility on White’s Path in Yarmouth and run down White’s Path toward Great Western Road.
The siting board had already approved the project on May 17, 2006 before Cape Cod Commission denied permission on Aug. 10, 2006. After a series of hearings, the board overruled the commission under the authority of General Law 164 and granted a certificate of approval.
“They (KeySpan) did get relief from the Energy Facilities Siting Board and that project has moved ahead,” Rodgers said this week. “As far as (Barnstable’s) lawsuit goes, we are reviewing it. We do not think it has any merit. We think the Massachusetts Legislature was very clear in granting the Massachusetts Energy Siting Board authority over electric power permitting.”
The board did indeed grant KeySpan authority but the commission also has a legislative mandate.
“What you’ve got really are two statutes at loggerheads with each other,” McLaughlin said. “And someone has got to decide who has the authority.”
He believes the commission has the ultimate authority and that any decision by the siting board would have to be retried.
“The commission was created after the EFSB and the Legislature is presumed to know what they were doing when they created the authority,” McLaughlin said. “The rule of the law tends to be that the latter authority is the one that controls. That’s our argument and we’ll see how it sorts out. What is clear is that there is a clear conflict between the two (agencies).”
When the siting board ruled against the commission in the KeySpan case, there was no appeal.
“The Cape Cod Commission Act, we think, is very clear: if you don’t like a ruling, you appeal to the courts. You don’t appeal to another agency,” said Glenn Wattley, CEO of the Alliance to Protect Nantucket Sound. “So with this suit Barnstable upholds that thought. Barnstable is taking a positive step to protect Cape Cod Commission jurisdiction.”
Wattley noted the Alliance has always felt the commission had the ultimate jurisdiction.
“The only thing different today is we see Barnstable stepping up to support that general principle,” Wattley said. “There is a good reason why the Legislature created the Cape Cod Commission and, again, there are ways to resolve the issues other than appealing to another agency.”
The Alliance has intervened in the current siting board hearing process on Cape Wind’s appeal of the commission ruling.
“Our immediate focus is to put our energies into that appeal,” said Wattley.
McLaughlin noted the siting board is aware of Barnstable’s complaint and will file an answer and, at some point, the case will be scheduled. Since it involves an article of law, it is possible that a Superior Court judge could immediately send it to the Massachusetts Supreme Judicial Court.
“The assumption is it will have to be resolved by the state’s highest court,” McLaughlin said.
The siting board postponed a public comment hearing that was scheduled for next week for unrelated reasons; it was sifting through various motions filed by the interested parties.
The Cape Codder
18 April 2008
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