The FAA’s determination that Cape Wind’s planned 130 turbines in Nantucket Sound would have no “substantial adverse effect” on navigation by air has been vacated by the U.S. Court of Appeals in Washington, D.C.
The Court accepted arguments from the Town of Barnstable and the Alliance to Protect Nantucket Sound that the federal agency had “misread its regulations, leaving the challenged determinations inadequately justified.”
In remanding the matter to the Federal Aviation Administration for further action, the court rejected FAA and Cape Wind arguments that the petitioners lacked standing to challenge the determinations.
The decision is the first victory after a long string of courtroom defeats for opponents of the project, which has secured a host of regulatory approvals and won local and state court cases over the last decade.
“At a bare minimum, it means it goes back to the FAA to start over and to adhere to their own policies and procedures and substantive analysis,” assistant town attorney Charles McLaughlin said Oct. 28. “It’s unclear at this point how long that will take. They’ve been slapped pretty severely by the court of appeals. I think that presumably they’ll take a good deal of time to do what they should have done the first time around.”
McLaughlin said the decision “is a very big one with long-term applications. Cape Wind is painting it as a temporary slowdown, but it should be of more concern to them.”
The company begs to differ.
“The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation,” Cape Wind Communications Director Mark Rodgers noted in a press 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.
“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.”
To bolster his case, Rodgers pointed to a March 2008 letter by Cape Air President Dan Wolf, now a state senator, which stated Wolf’s agreement that the project “will have no adverse impact on air transportation or navigation in the region.”
Wolf opposed the project before lending it his support.
In light of the decision, Alliance to Protect Nantucket Sound CEO Audra Parker said in a press statement, Massachusetts Gov. Deval Patrick’s administration should “stop its attempts to force the state’s second largest electric utility, NStar, to purchase energy from a project that will never be built.”
Gleanings from the Decision
After the FAA ruled that each of Cape Wind’s turbines “would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities,” the Court noted, the town and the Alliance argued “that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation.”
The Court found that the U.S. Department of the Interior, which is leasing the ocean area to Cape Wind, put great stock in the FAA sign-off and therefore would be likely to require changes in the project if the concerns raised by the petitioners were found to have merit.
“In a curious display of agency modesty, the FAA dismisses its influence with Interior,” the decision notes rather wryly.
Drawing on submissions from Cape and Islands aviation officials, the Court listed a number of aviation safety concerns ranging from pilots operating in “one of the most congested, foggy, and dangerous airspaces on the eastern seaboard.” That comment was submitted by the Barnstable Municipal Airport Commission in 2009.
“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 Court declared, “the record expresses no such proposition.”
Interim Town Manager Tom Lynch said this week that the Court “validated those of us who felt adequate scrutiny was not given to public concerns. I hope in the future they’ll be more thorough.
The town is a petitioner in another suit involving the FAA in the U.S. District Court in Washington.
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