A day after the U.S. Department of Energy conditionally approved a $150 million loan for Cape Wind, two other federal agencies on Wednesday filed required paperwork that seemingly gives the project’s developer another in a string of legal victories.
It also sets the stage for an appeal of the underlying federal lawsuit decided almost entirely in favor of the project four months ago.
In a series of documents filed with the U.S. District Court for the District of Columbia, the National Marine Fisheries Service and the Fish and Wildlife Service explained the reasoning behind the decision not to require an incidental-take permit for several whale species and why a recommendation to turn off the project’s turbines during certain periods was not included in a biological opinion for the offshore wind farm.
An incidental-take permit authorizes certain activities that are lawful but may cause harm to a federally protected species.
The federal lawsuit was a combination of a series of challenges brought by the Alliance to Protect Nantucket Sound, Public Employees for Environmental Responsibility, the town of Barnstable and the Wampanoag Tribe of Gay Head (Aquinnah.)
Alliance president Audra Parker said Wednesday that she had not seen the documents filed with the court but said if they are complete the next step is for the judge to issue a final order in the case.
At that point, the plaintiffs would be able to appeal the judge’s other rulings, such as his finding on claims related to determinations by the Coast Guard about the project’s effect on navigation, Parker said.
In his March 14 ruling on the lawsuit, Judge Reggie Walton threw out most of the challenges but ordered that the fisheries service issue a take permit for right whales. Although the fisheries service found that the project would be unlikely to adversely affect right whales, it did not state that whales would not be harmed or that harm was not anticipated, Walton wrote.
Walton also called on the Fish and Wildlife Service to say whether it had determined on its own that it would be unreasonable and imprudent to shut down the turbines at certain times of the year to protect migratory birds rather than relying on determinations by the Bureau of Ocean Energy Management and Cape Wind.
In 2008, wildlife service officials had cited Cape Wind and the bureau to say that turning off the turbines during certain times of the year would have an adverse affect on the project’s stated purpose, its contribution toward enhancing the region’s electrical reliability and achieving the state’s renewable energy requirements.
In the court filings on Wednesday, the wildlife service provided its own rationale for the same finding.
“The rationale provided here represents the service’s independent determination on that point,” wildlife service officials wrote.
“It’s another rubber stamp and not surprising,” Parker said about the finding by the fisheries service.
In addition to the potential appeals in this case, the alliance and other Cape Wind opponents have appeals pending on another federal lawsuit challenging an energy contract for the project.
On Tuesday, the Department of Energy approved a conditional $150 million loan guarantee for the project that brings to $1.45 billion the amount of conditional loans and investments for the project. The latest estimate based on three-year-old filings with state energy regulators pegged the project’s total cost at $2.6 billion.
Cape Wind is reviewing the latest court filings and didn’t have any immediate comment on them, according to company spokesman Mark Rodgers.
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