October 29, 2011
Massachusetts

Barnstable wins lawsuit: FAA Cape Wind approval overturned

By Rich Eldred, THE REGISTER, www.wickedlocal.com \ 28 October 2011

The town of Barnstable has won their lawsuit vs. the Federal Aviation Authority and their recommendation that the Cape Wind project in Nantucket Sound did not present an aviation hazard.

On Friday the morning the U.S. Court of Appeals in the District of Columbia overturned the FAA’s ruling that the 130 proposed wind turbines in Nantucket Sound posed “no hazard to” aviation. They found the FAA review failed to comply with regulations in the FAA handbook and would have to be revisited.

The FAA had issued 130 identical determinations of no hazard for each turbine. The court found the FAA, “misread its regulations, leaving the challenged determinations inadequately justified.”

The ruling cheered opponents of the project, which was first proposed over ten years ago.

“We are quite happy with it,” said Audra Parker, President of the Alliance to Protect Nantucket Sound and a co-petitioner in this case. “It is a victory for the people of the Cape and Islands and the citizens of Massachusetts. It is a major setback for Cape Wind which was already struggling with numerous legal and financial challenges.”

Parker noted there were 11 lawsuits involving the project, counting as two Barnstable’s and their own vs. the FAA, which are merged in this case. There are four more concerning Cape Winds contract to sell electricity to National Grid and five at the Federal level involving the approval of the project by various agencies.

Mark Rodgers, communication director for Cape wind, was confident that when it reappraised the situation the FAA would still be comfortable with the project.

“The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation,” he said in a statement. “The essence of today’s court ruling is that the FAA needs to better explain its Determination of No Hazard. We are confident that after the FAA has done this that their decision will stand and we do not foresee any impact on the project’s schedule in moving forward.”

The court noted the record contained many contentions that the wind farm could pose a safety risk to pilots operating under visual flight rules noting local airport managers pointed out pilots, “would have a difficult time staying beneath the foggy and otherwise inclement weather that often plagues Nantucket Sound, while at the same time maintaining a safe distance from the wind turbines. During such times, there would be a ‘clear risk of collision with the wind turbine generators.’”

The National Air Traffic Controllers Association added that the wind farm area would be a “disaster waiting to happen.”

“While of course the wind farm may be one of those projects with such overwhelming policy benefits (and political support) as to trump all other considerations, even as they relate to safety, the record expresses no such proposition,” the court wrote.

The court ruled the FAA, “failed to supply any apparent analysis of the record of evidence concerning the wind farm’s potentially adverse effects on (visual flight rule) operations.”

A study provided the court showed the over a 90-day period 425 planes using visual flight rules’ traveled through the project boundaries and the 94-percent of those were flying at less than 1,000 feet (the turbines are 440 feet high). That number exceeds the one per day level of significance set in the FAA handbook.

The court noted that during bad weather planes could fly lower, and come within 500-feet of the turbines (in violation of a flight rule) and according to the handbook that would constitute “a hazard to air navigation.”

As such they overturned the FAA ruling of no hazard.

“Any sensible reading of the handbook,” the court opinion stated, “would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations.”

“We’ve been in agreement with the aviation community that there are real dangers,” Parker said. “It would be extremely difficult, if not impossible to have a no hazard determination with the present configuration of the project.’

That’s not the view of Cape Wind.

“Really, today’s court decision doesn’t change things very much because our existing Determination of No Hazard (the third we have received since we started with this project) was set to expire in just 90 days and we were going to have to re-apply at that time anyway, this lets us begin that process sooner,” Rodgers said.

Rodgers cited a 2008 letter from Dan Wolf (then the President of Cape Air, now the State Senator from Barnstable) that noted Cape Air saw no problem with the wind farm.

Wolf agreed with the FAA findings, “that the Cape Wind project proposed for Horseshoe Shoals will have no adverse impact on air transportation or navigation in the region.”

“(We) have grown increasingly comfortable that nothing in the proposal would jeopardize our mission,” Wolf wrote.

The court admitted the FAA might ultimately find these dangers “modest” they couldn’t review such a prediction.

The FAA “catapulted over the real issues” the court argued, “and the analytical work required.”

In conclusion the court decided, “whether the application of the handbook’s guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision making, i.e. to require the FAA to address the issues and explain its conclusion.”

The FAA will now have to redo their review and properly apply the regulations in the handbook.

Parker noted that the Department of the Interior’s approval of the project was in part based on the FAA ruling of no hazard.

“So there are implications for them to review (their decision) as well,” she concluded.

“Better and cheaper forms of green energy are widely available,” Parker added in a statement. “The free market has shown little or no interest in Cape Wind, the federal government has refused to issue a loan guarantee for the project, and now a federal court has dealt Cape Wind a major setback in rejecting the FAA’s determination.”

URL to article:  https://www.wind-watch.org/news/2011/10/29/barnstable-wins-lawsuit-faa-cape-wind-approval-overturned/