BOSTON – In a 4-2 ruling that could degrade local control over Cape Cod energy projects, the state’s highest court yesterday rejected a challenge to a so-called “super permit” for the proposed Nantucket Sound wind farm.
The potentially precedent-setting decision by the Massachusetts Supreme Judicial Court affirmed the approval last year of nine local and state permits by the state Energy Facilities Siting Board for cables connecting the wind farm to the electric grid. The majority opinion found the siting board had authority to override the Cape Cod Commission, that the state acted appropriately in designating the siting board to issue a permit for development in tidelands, and that the state panel correctly interpreted its jurisdiction as only covering the cable rather than encompassing the project’s 130 turbines.
The court’s decision was the latest in a string of legal victories for Cape Wind.
“I am gratified that the court has upheld the state’s actions and regulations with regard to Cape Wind and brought to an end numerous legal challenges,” Massachusetts Secretary of Energy and Environmental Affairs Ian Bowles wrote in a statement e-mailed to the Times. “With the high court’s approval, this important renewable energy project now has all the state and local permits it needs to go forward.”
The siting board was established to ensure a reliable, affordable and environmentally sound electricity supply for the state, Cape Wind president Jim Gordon said in response to concerns about limitations on local control.
“Electricity is a utility,” he said. “It’s a critical service that we all need. It powers our economy – it keeps our heat and lights on.”
The state Legislature set up the board to examine instances where a local board may not have acted in the best interests of the state, Gordon said.
“The siting board looked at their mandate, looked at the regulatory framework and they made the right decision for the commonwealth of Massachusetts and Cape Cod and that was upheld by the Supreme Judicial Court,” he said.
The anti-Cape Wind group the Alliance to Protect Nantucket Sound called the court’s decision “an outrageous violation of community rights.”
“Obviously with a very strong dissenting opinion there are some very strong legal issues in there,” the group’s president and CEO Audra Parker said, adding that her organization continued to review possible avenues of appeal.
Local control at issue
The siting board’s initial decision to issue the permit overturned a 2007 commission denial of the project.
“There are a lot of implications beyond Cape Wind,” Cape Cod Commission Executive Director Paul Niedzwiecki said yesterday.
Based on the court’s decision, an energy developer could simply fill out applications with local boards but then proceed directly to the siting board for a ruling, he said.
“I don’t think that kind of bootstrapping was intended when the (siting board) was created,” he said.
Instead, the siting board was meant to protect against unwarranted and bias use of local authority, Niedzwiecki said.
Proposals to change the use of the Mirant Canal Generating Plant in Sandwich, for example, could bypass local permitting and be approved by the siting board, he said.
“Those aren’t imaginary discussions,” he said, adding that talks are under way regarding the future of the oil and natural gas-fired plant.
Following yesterday’s court ruling, a change in state law is likely required to ensure that developers make an honest attempt to meet local permitting requirements but the decision is the end of the commission’s challenges of the Cape Wind permits, Niedzwiecki said.
“The only appeal would be a constitutional argument,” he said, adding that no such argument exists in the case.
Cape Cod residents should not be concerned about losing control over local energy projects, said Matthew Pawa, an attorney for the pro-Cape Wind group, Clean Power Now.
The court’s decision was specific in finding that Cape Wind had complied with all the requirements of the Cape Cod Commission, he said.
“These kinds of battles will go forward as they always do,” he said. “I don’t see any precedent here.”
The court’s ruling was significant, he said, because it disposed of a question surrounding the so-called public trust doctrine that was raised by Cape Wind’s opponents and pursued during oral arguments in February by outgoing Chief Justice Margaret Marshall.
“The state Legislature has delegated the important responsibilities to protect the public trust tidelands to the siting board,” Pawa said.
Marshall, who was joined by Associate Justice Francis Spina in the minority opinion, argued that the siting board was not authorized to decide if the cable project could proceed in tidelands held in trust for the public by the state.
“The court’s ruling to the contrary establishes a dangerous and unwise precedent, which has far-reaching consequences,” Marshall wrote. “A wind farm today may be a drilling rig or nuclear power plant tomorrow.”
An attorney with the town of Barnstable – a plaintiff in the case along with the commission and the alliance – said he too was reviewing the decision.
“At this point we’ve got to brief the (town) council of the direction we’re headed in,” said attorney Charles McLaughlin,.
The case does not appear to resolve a pending case regarding approval of Cape Wind by the Massachusetts Office of Coastal Zone Management, he said.
Yesterday’s decision came a week before the state Department of Public Utilities is expected to take up a contract between Cape Wind and National Grid during two weeks of hearings in Boston. Under the proposed agreement the utility would buy power from the developer for 18.7 cents per kilowatt-hour, a price that translates to an additional $1.50 on the average monthly bill for a residential customer in National Grid’s territory, according to the utility’s calculations.
The federal government approved Cape Wind in April but a handful of lawsuits have been filed challenging that decision.
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