A federal appeals court has overturned a vital clearance for the proposed Nantucket Sound wind farm in a ruling Friday that dealt the project a major legal setback.
In a 14-page opinion, the U.S. Court of Appeals in Washington, D.C., rejected a determination by the Federal Aviation Administration that the proposed wind farm would pose “no hazard” to aviation over the Sound. It also found that the agency overlooked its own rules in making that determination.
The court ordered the case back to the FAA for further review.
The ruling is a blow to Cape Wind LLC, which seeks to put 130 wind turbines, each 440 feet tall, in a 25-square-mile patch of Nantucket Sound. The project was the first offshore wind farm in the United States to win federal approval last year.
The project also had a setback in May when the U.S. Department of Energy put a hold on a federal loan guarantee for the project because of a lack of money in the program.
Friday’s ruling effectively halts the project. It’s unclear how it will affect the host of other legal challenges facing Cape Wind.
Barnstable town attorney Charles McLaughlin echoed those sentiments.
“Someone is finally saying the political steamroller has to slow down and these safety concerns have to be addressed,” he said.
Mark Rodgers, a spokesman for Cape Wind, said the ruling shouldn’t affect the project’s timetable.
“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 an email to the Times. “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 FAA will review the court’s decision and determine whether Cape Wind will need to refile for a new “no hazard” determination, said Jim Peters, a spokesman for the agency.
If so, the company will immediately do so, Rodgers said.
In its ruling, the court cited a failure of the FAA to follow its own guidelines in determining whether the turbines would pose a risk to flights operating under visual flight rules.
“The FAA did misread its regulations, leaving the challenged determinations inadequately justified,” wrote Senior Circuit Court Judge Jason Williams in the opinion.
The FAA can find a project adversely affects air traffic if one flight has to be rerouted, according to the opinion.
A 90-day study of traffic in the airspace found that 425 flights flew through the immediate project area and most of these were at an altitude of less than 1,000 feet.
In addition to the ongoing legal challenges, Cape Wind must still find a buyer for half of its power and secure financing.
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