The presiding judge in a lawsuit against the state of Massachusetts and the company that wants to build 130 wind turbines in Nantucket Sound dismissed the bulk of the suit this week.
Barnstable Superior Court Judge Robert Kane ruled in favor of Cape Wind Associates on most of the company’s requests to dismiss five complaints in the case, which challenged the adequacy and jurisdiction of the state’s review of the project under the Massachusetts Environmental Policy Act.
Last year, the state Executive Office of Energy and Environmental Affairs approved the project in an environmental impact statement required under state environmental law. That approval set the stage for other state agencies to issue permits for Cape Wind.
In August, the town of Barnstable, the Alliance to Protect Nantucket Sound and a group of individuals sued Ian Bowles, the state secretary of energy and environmental affairs, and Cape Wind. The lawsuit claimed the state’s review of the proposed wind farm did not adequately address the impacts of the project, including those on endangered species.
In a 37-page ruling released Friday, Kane allowed motions by the state and Cape Wind requesting dismissal of large parts of four of the lawsuit’s five complaints, including the claim that Bowles’ review of the project was “arbitrary and capricious.”
Kane denied a motion to dismiss the fifth complaint, which alleges Cape Wind would violate the state’s endangered species law. The judge ruled that because there is an administrative appeal under way, the Department of Fish and Wildlife letter that prompted the claim could not be considered a permit and therefore could not be challenged in court by the plaintiffs at this point.
“It appears to leave the town’s claim intact in terms of challenging the (Massachusetts Environmental Policy Act) action,” Charlie McLaughlin, an attorney for the town of Barnstable, said yesterday. “It seems that those issues are dangling out there.”
He said the case could still go to trial or the judge could move the matter to the state’s Supreme Judicial Court.
A Cape Wind spokesman did not return a phone call seeking comment yesterday. A spokeswoman for the Alliance to Protect Nantucket Sound also did not return a phone call yesterday.
The lawsuit against the state and Cape Wind is not the only legal protest to the proposed Nantucket Sound wind farm. There is also a lawsuit challenging the ruling by the state Energy Facilities Siting Board, which overruled a denial of Cape Wind by the Cape Cod Commission. An appeal of that decision is ongoing.
The U.S. Department of Interior’s Minerals Management Service – the lead federal agency in the project’s review – released a largely favorable draft environmental impact statement on the project in January.
A final version of the federal report is due by the end of the year, and a new flurry of legal action is expected to follow its release.
By Patrick Cassidy
22 June 2008
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