A federal appeals court has dealt another blow to a controversial $2.6 billion wind farm project off Cape Cod, overturning a Federal Aviation Administration finding that the proposed 130 turbines will present no danger to local air traffic.
Writing for the three-judge panel, Senior D.C. Circuit Judge Stephen Fain Williams found that the FAA misinterpreted its own rules in assessing the project. First proposed a decade ago, if built, it would be the nation’s first offshore wind farm.
The project, proposed for Nantucket Sound, has drawn heated opposition in Massachusetts, from environmentalists, tourism-dependent towns, Native Americans, fishermen and recreational boaters, and from the late Sen. Ted Kennedy, whose family has a famous home on the cape.
In a 14-page ruling, Williams held that the FAA did not adequately determine whether Cape Wind’s 440-foot tall turbines would pose a danger to pilots relying by sight (known as visual sight rules or VFR) rather than relying on their aircraft’s instruments.
The court vacated the government’s “no hazard” finding and sent the case back to the FAA, agreeing with the plaintiff Town of Barnstable that “the FAA did misread its regulations.”
The ruling stemmed from an appeal of the FAA finding by Barnstable and an environmental group, the Alliance to Protect Nantucket Sound.
Nantucket Sound is south of Cape Cod, between the peninsula and the islands of Nantucket and Martha’s Vineyard. Cape Cod Bay is on the north side of the cape.
In its analysis, the FAA found that 425 VFR flights were made through the project’s boundaries during a 90-day study period, and that many of the flights passed within 500 feet on either side or 1,000 feet above the proposed location of the turbines.
“Once the turbines are built, many of these flights may be forced to be rerouted or to proceed in violation of the FAA’s own regulation, which requires a 500-foot distance between an aircraft and any structure,” Williams wrote, noting that pilots flying by VFR could be “compressed” to a lower attitude to avoid cloud cover.
“The FAA repeatedly notes in its brief that [its own] handbook ‘largely consists of criteria rather than rules to follow.’ We agree,” Williams wrote. “Any sensible reading of the handbook … would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence … suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure … the FAA catapulted over the real issues and the analytical work required by its handbook.
“Whether in fact an application of the handbook’s guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, to what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making.”
In a statement posted on the project’s web site, Cape Wind’s backers said: “The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation. 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 does this, that their decision will stand and we do not foresee any impact on the project’s schedule in moving forward.
“Really, today’s court decision doesn’t change things very much because our existing Determination of No Hazard (the 3rd 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.”
Jim Peters, an FAA spokesman, said the agency was reviewing the ruling.
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