Just as a new lawsuit was filed challenging Cape Wind, another one was beaten back.
The U.S. Court of Appeals in Washington, D.C., on Wednesday denied a petition by wind-farm opponents appealing the Federal Aviation Administration’s approval of the proposed Nantucket Sound project.
The federal court decision came only a day after opponents filed a new lawsuit in U.S. District Court in Massachusetts challenging a power-purchase agreement between NStar and Cape Wind.
In the latest legal decision, the court found that the circumstances surrounding concerns over the effect of the turbines on aeronautical radar had changed since the same court rejected an earlier “no-hazard” finding by the FAA and that tests of a new radar system had addressed those concerns.
“In January 2012, the FAA upgraded the ASR-8 radar and beacon at Otis Airfield by digitizing the output with a TDX-2000 processor,” according to the court finding. “The FAA had concluded in the aeronautical study that the installation of the TDX-2000 would not only address existing radar issues … but also reduce unwanted returns from the wind turbines.”
The court also found that the FAA was not required to perform or participate in an assessment of the environmental impacts of its no-hazard determination.
“The Alliance to Protect Nantucket, the town of Barnstable and their financial backer – coal billionaire Bill Koch – have failed yet again in their continuing campaign to use the courts to delay the financing of Cape Wind,” company spokeswoman Mark Rodgers wrote in a statement about the decision.
Koch, who owns property in Osterville, is a major donor to the alliance, which is the primary Cape Wind opposition group.
Alliance President Audra Parker said on Wednesday that the court’s decision is no green light for Cape Wind.
“The hurdles are still enormous,” she said, adding that the project has still failed to secure necessary financing.
Although she thinks the alliance is unlikely to appeal the Court of Appeals decision to the U.S. Supreme Court, Parker said the decision leaves questions about the effect of the project on planes flying under visual flight rules.
A spokesman with the FAA said the agency has received the latest Court of Appeals decision and is reviewing it.
The FAA approved the 130-turbine Cape Wind project in May 2010. But after the alliance and Barnstable officials appealed the decision, the Court of Appeals sent the project back to the agency in October 2011 for more review. In the 2011 decision, the court found the FAA had overlooked its own rules in making its determination.
The project also drew scrutiny from GOP lawmakers who claimed that President Barack Obama’s administration had exerted pressure on the FAA to approve the wind farm.
In August 2012, the FAA issued a new finding that the project posed no hazard to aviation.
Parker said opponents are still optimistic they will ultimately defeat the project. And, as dismissive as Cape Wind is of the lawsuits brought against it, the earlier FAA decision is proof that those challenges are not frivolous, Parker said.
In the suit filed Tuesday, the alliance, the town, and several businesses and individuals sued state officials, Cape Wind and NStar, claiming the project violates the U.S. Constitution.
That case is different from earlier challenges of the power contracts because it challenges the project based on a violation of the Federal Power Act, Parker said.
In addition, there are still several consolidated cases pending in federal court that challenge the approval of the project by the Department of the Interior.
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