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Claims hound Cape Wind

When plaintiffs in a lawsuit over Cape Wind’s potential effect on birds, whales and other wildlife announced recently they had filed a related legal brief, a company official dismissed the case as old news.

Unfortunately for offshore wind energy developer Jim Gordon, the wildlife suit is one of several still pending that might determine whether he ever builds 130 wind turbines in Nantucket Sound.

Cape Wind still faces four legal challenges, now consolidated into one lawsuit, contesting federal approvals. Another pending suit focuses on the Federal Aviation Administration’s approval of Cape Wind.

In the past several years, Gordon has had the wind at his back, with a slew of approvals from the federal government, deals to sell more than 75 percent of Cape Wind’s power, the siting of the project’s operations headquarters and the start of geological surveys presaging imminent construction.

A group of fishermen on Martha’s Vineyard earlier this year even agreed to drop its legal fight against the wind farm.

Despite these many achievements, Cape Wind still faces hurdles, including finding financial backers and settling those pesky lawsuits.

“There are five strong lawsuits facing Cape Wind as well as significant financial challenges,” said Audra Parker, president and CEO of the project’s primary opposition group, the Alliance to Protect Nantucket Sound. Any reference to the technical consolidation of lawsuits is misleading, according to Parker, who argues that the challenges cover a variety of issues and come from an array of different groups.

In a brief filed earlier this month, the alliance, Public Employees for Environmental Responsibility and other environmental and citizens groups from as far away as Texas and California presented detailed arguments about how they believe the project would violate the Endangered Species Act and Migratory Bird Treaty Act.

“Plaintiffs do not doubt the importance of developing renewable energy resources in appropriate locations,” the plaintiffs wrote in the 46-page brief. “But, as federal court recently held where another wind power project violated the Endangered Species Act … the objective of promoting renewable energy does not excuse a failure to scrupulously comply with federal environmental law.”

The alliance and its co-plaintiffs argue that endangered North Atlantic right whales have been spotted in Nantucket Sound in recent years and that millions of birds, including endangered and threatened species, traverse the area, making them susceptible to the spinning blades of Cape Wind’s turbines.

The administrative record documents years of radar, boat and seaplane bird surveys in the Sound, and the project has undergone more comprehensive pre-construction bird investigation than any wind farm in the world, Cape Wind spokesman Mark Rodgers countered. It has even received the support of Mass Audubon, he noted.

Rodgers pointed to historical data and an updated biological assessment by the National Marine Fisheries Service that contends right whales’ use of the Sound is rare and that measures will protect the animals from ship strikes.

“Additionally, the habitat within Nantucket Sound is inconsistent with the habitat where right whales are typically found,” according to the 2010 NMFS assessment.

Although several right whales were spotted in Nantucket Sound in 2011 and again in nearby Vineyard Sound in 2012, none has been reported where Cape Wind plans to install its turbines.

Still, opponents say the death of even one breeding female as a result of increased ship traffic in the area is enough to raise alarms, as the population of North Atlantic right whales is believed to include fewer than 500 individuals. Cape Wind officials argue this is a familiar hypocrisy on the part of its critics, who have claimed that moving the turbines farther out in the ocean and closer to areas the whales use more frequently might be acceptable.

How strong a case the opposition has in any of its legal challenges is clearly in the eyes of the beholder.

So far Cape Wind or the agencies that have approved it have successfully defended the project in more than a dozen lawsuits brought by the alliance and others.

In the project’s only substantive legal defeat, a federal judge sent an FAA approval back to the agency for a second look. In August, the FAA cleared the project again, a decision that the alliance and the town of Barnstable have once again challenged in court.

The Wampanoag Tribe of Gay Head (Aquinnah), the alliance and a group of citizens have filed additional lawsuits against the Interior Department, the Coast Guard and the Army Corps of Engineers for those agencies’ roles in approving the project.

Motions and other filings in those cases, which have been consolidated, are due over the next several months.

Cape Wind and its supporters argue the continuous stream of lawsuits against the project over the past decade is frivolous and the current challenges have no merit.

The federal government has done not one but two environmental reviews of Cape Wind and found that the project’s benefits outweigh its costs, said Kit Kennedy, an attorney with the Natural Resources Defense Council, one of several environmental organizations that support Cape Wind and have friend-of-the-court status in the legal cases.

“We are confident at the end of the day the court will uphold the approvals of the project,” Kennedy said.
Public Employees for Environmental Responsibility, the Alliance to Protect Nantucket Sound and other environmental and citizens groups v. Bureau of Ocean Energy Management, Regulation and Enforcement, Interior Department and others, arguing that approval

Town of Barnstable v. the Interior Department, the Coast Guard and others, arguing that the federal government violated various federal laws and that the town would be saddled with costs for emergency responses to the wind farm.

Wampanoag Tribe of Gay Head (Aquinnah) v. Bureau of Ocean Energy Management, Regulation and Enforcement and the Interior Department, alleging violations of the National Environmental Policy Act, the National Historic Preservation Act and the Administrative Procedure Act.
Alliance to Protect Nantucket Sound and a group of citizens v. the Interior Department, the Coast Guard and others, alleging violations of various federal laws.
Alliance to Protect Nantucket Sound, town of Barnstable v. Federal Aviation Administration, challenging the FAA’s approval of Cape Wind. A previous FAA approval for the project was sent back to the FAA last year by a federal judge who said the agency overlooked its own rules in approving the project. A new approval for Cape Wind was issued in August.