Cape Wind opponents win legal victory 

A proposal to build a massive wind energy plant in the waters of Nantucket Sound that are sacred to the Wampanoag people has had a legal setback. The Massachusetts Supreme Judicial Court denied Cape Wind’s motion to dismiss evidence that lower priced green energy contracts are available.

The Supreme Judicial Court (SJC) ruling, which was issued on June 16 by a single judge, is a significant legal victory for the Alliance to Protect Nantucket Sound, the Associated Industries of Massachusetts (AIM) , TransCanada and the New England Power Generators Association—opponents of the Cape Wind project who have all filed legal challenges against the offshore industrial–sized wind factory that would be visible from Cape Cod, Nantucket and Martha’s Vineyard.

The SJC dismissed a motion by Cape Wind that would have suppressed evidence that its power purchase contract with National Grid is two-and-a-half times the cost of green energy from other providers. The power purchase agreement approved last year by the Massachusetts Department of Public Utilities (DPU) calls for Cape Wind to sell half of the power it would generate to National Grid, a private company that sells energy in the Northeast, for 18.7 cents per kilowatt-hour (kWh) with a 3.5 percent increase each year, bringing the cost to 30 cents per kWh by the end of the 15-year license. Massachusetts’s consumers paid nine cents per kWh last year. The court decision ensures that the full body of evidence against Cape Wind will be examined during briefing and oral argument when it convenes in September.

Audra Parker, president and CEO of the Alliance to Protect Nantucket Sound, welcomed the ruling. “This is a victory for the electric ratepayers of Massachusetts who have said loud and clear that they do not want to be burdened with unnecessary additional energy costs,” Parker said.

Cape Wind’s proposal for 130 turbines, towering 440 feet above ocean level and spread across almost 50 square miles of Nantucket Sound would obliterate the Wampanoag Tribes’ unimpeded view of the rising sun that is crucial in a ceremony that is central to their identity, and destroy the ocean bed that was once dry land where their ancestors lived and died. The project also includes plans for a 10-story electrical service platform with 40,000 gallons of transformer oil and 1,000 gallons of diesel fuel and a helicopter pad, a 66.5-mile submarine transmission-cable system, and two 115-kilovolt lines totaling 25 miles connecting to the mainland power grid. The wind installation would be less than five miles offshore.

The Alliance, AIM, Trans Canada, and New England Power Generators filed an appeal March 1 with the state Department of Public Utilities (DPU) to have the agency reopen its review of the agreement after an announcement that NStar, a privately owned power utility in Massachusetts, was able to secure cheaper power from land-based renewable-energy projects. NStar is paying less than 10 cents per kWh for its power from three New England wind farms.

“NSTAR has proven that Massachusetts utilities can meet their green energy goals without overburdening consumers with unnecessary electric costs at a time when we can least afford them. National Grid should have to do the same,” Parker said.

The SJC decision means that the state’s high court will hear two separate cases on the DPU approval of the Cape Wind agreement – one challenging its decision not to re-open the case and consider the additional evidence; and a second filed by the Associated Industries of Massachusetts (AIM) and others seeking to overturn the entire decision.

“Had the DPU considered these lower-priced contracts, customers would have saved hundreds of millions of dollars. Now, the SJC will have the opportunity to determine the importance of this information,” John Regan, Executive Vice President of Government Affairs at AIM, said in a news release posted on the association’s web site.

AIM argues in its appeal that the DPU’s approval was “arbitrary, capricious,” an “abuse of discretion and not otherwise in accordance with the law.” “The agreement sets a dangerous precedent for allowing utilities to negotiate expensive power agreements outside of the competitive bidding process and to allocate the costs of those contracts unfairly to commercial and industrial customers,” Regan said.

The SJC ruling follows a major setback that occurred in May when the U.S. Department of Energy denied Cape Wind a $2 billion public loan guarantee that the company was counting on for financing the project. The project has yet to secure private financing or a buyer for half of its power.