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Leading constitutional law expert: expensive Cape Wind power contract “forced down NSTAR’s throat”

Massachusetts officials and Cape Wind misinterpreted the law and drew a number of incorrect conclusions in their defense of a flawed U.S. District Court decision regarding a multi-party lawsuit challenging Cape Wind’s high priced contract with NSTAR, according to a new brief.

The brief, authored in part by Laurence Tribe, one of the nation’s leading constitutional law experts, argues that the Alliance to Protect Nantucket Sound, the Town of Barnstable and a group of local businesses and residents have demonstrated an ongoing violation of federal law by Massachusetts agencies because the Cape Wind NSTAR purchase power agreement was a result of “state coercion rather than a voluntary market transaction.”

“The Settlement Agreement between NSTAR, the Department of Energy Resources and Cape Wind makes it crystal clear that the only reason NSTAR agreed to buy Cape Wind power was to secure the Department’s support for the NSTAR-Northeast Utilities merger,” said Tribe. “If that merger fell through, then NSTAR was relieved of its obligation to purchase electricity from Cape Wind.”

Tribe, a University Professor at Harvard and a Professor of Constitutional Law at Harvard, is working on the appeal with lawyers from Massey & Gail, Jenner & Block and Lawson & Weitzen.

The brief outlines the events leading up to the state’s approval of the NSTAR-Northeast Utilities merger, which tell a straightforward story that the agreement to purchase Cape Wind power “was not freely and voluntarily negotiated in the market, but instead forced down NSTAR’s throat by the state.”

Cape Wind power is guaranteed to be among the most expensive in the nation if the project ever receives funding and final approvals. It would be at least three times the cost of competing out-of-state green energy providers, and according to NSTAR’s own estimates, would raise electricity bills for NSTAR customers by nearly $1 billion over the life of the contract.

“From an economic perspective, the State has imposed a direct surcharge on ratepayers’ power rates attributable to illegal discrimination” because NSTAR will collect every cent from its customers that it pays to Cape Wind, according to the brief.

Earlier this summer, the legal team filed a brief arguing that U.S. District Court Judge Richard Stearns seriously misinterpreted the Constitution’s Eleventh Amendment in dismissing the multi-party suit. Cape Wind, a massive 130 wind turbine project proposed for the heart of Nantucket Sound, has struggled to get off the ground for the past 13 years due to its extraordinary financial and environmental costs.

“We continue to believe we have a very strong case that shows NSTAR was coerced into buying Cape Wind power in a way that violates federal law, discriminates against affordable green power producers, and burdens small businesses and municipalities with unnecessarily high electricity costs,” said Audra Parker, President and CEO of the Alliance. “It’s time that the state acknowledges and takes responsibility for this backroom deal that would place a tremendous cost burden on consumers and businesses throughout the Commonwealth.”

Professor Tribe served as the first Senior Advisor for Access to Justice for Attorney General Holder in the Obama Administration. President Obama is a former student and research assistant of the professor. Professor Tribe also argued the first of the two Bush v. Gore Supreme Court cases for former Vice President Al Gore in the disputed 2000 presidential election, and has argued dozens of other major cases in the Supreme Court. Professor Tribe is the author of over a hundred books and articles, the recipient of eleven honorary degrees and counts among his many distinguished students both Chief Justice John Roberts and Justice Elena Kagan.