Opponents of the proposed Nantucket Sound wind farm will appeal a federal court decision upholding approvals for the project and a finding by state officials that allows Cape Wind and NStar to install new electrical equipment at a switching station in Barnstable.
The pending appeals mark the latest in a long line of challenges to the 130-turbine project, which was first proposed in 2001.
In mid-March U.S. District Judge Reggie Walton tossed most of the challenges to the Department of Interior’s 2010 approval of the wind farm but sent two findings on birds and whales back to the federal Fish and Wildlife Service and National Marine Fisheries Service for further action.
The plaintiffs in the case – the Alliance to Protect Nantucket Sound, Public Employees for Environmental Responsibility, the town of Barnstable and the Wampanoag Tribe of Gay Head (Aquinnah) – had argued that the federal government’s approval of the project was rushed, influenced by political pressure and violated the Endangered Species Act, the Migratory Birds Treaty Act and other federal laws.
Now that the federal agencies have responded to Walton’s remand order and the judge has made a final decision in favor of the federal government’s approval of Cape Wind, the plaintiffs are preparing an appeal.
“At this point we are in a position where we can appeal whatever issues we want to appeal,” said Audra Parker, president of the alliance.
An appeal could come as soon as this week, she said.
“The judge has affirmed those findings,” Barnstable Assistant Town Attorney Charles McLaughlin said. “It’s ripe across the board for appeal.”
The town will also be appealing the state Energy Facilities Siting Board’s approval of changes to the interconnection of the wind farm to the electric grid at an NStar switching station in Barnstable, McLaughlin said.
The installation of new equipment at the station would increase the amount of dielectric oil at the site by 1,534 gallons and the town had asked that an oil containment system be installed, similar to one at another NStar transformer in West Barnstable, McLaughlin said.
“They refuse to do that here,” McLaughlin said, adding that if one gallon of oil makes it into the groundwater it has the potential to contaminate 5 million gallons of water.
Cape Wind spokesman Mark Rodgers said “doom and gloom” predictions by McLaughlin about the potential for a major oil spill are “highly misleading.”
The non-PCB, nonhazardous insulating oil will be factory sealed in a series of 288 separate canisters containing either 4.5 or 7.8 gallons each, according to information provided by Rodgers.
Cape Wind and NStar have developed an oil response plan in case something goes wrong and will install two layers of trap rock at least 3 feet deep separated by a geotextile membrane, which goes beyond industry standards and will reduce the rate at which any spill might flow through the ground, according to Rodgers. By the time emergency responders arrive at the site, the oil will only have traveled 3 to 4 feet deep in an area where the groundwater is 50 to 75 feet below the surface, according to Rodgers.
The alliance, the town of Barnstable and several businesses are also awaiting a decision from a three-judge U.S. Court of Appeals panel on whether a power purchase agreement between the offshore wind energy developer and NStar is constitutional.
In May, U.S. District Judge Richard Stearns ruled in favor of Cape Wind, NStar and state energy regulators, who argued the suit was barred by the 11th Amendment of the Constitution, which restricts lawsuits in federal court against a sovereign state for past actions.
The alliance, Barnstable and the businesses appealed that decision, hiring well-known constitutional law attorney Laurence Tribe to take their case.
In 30-page brief filed last month, plaintiffs argued that the approval of the power purchase agreements by the state, although a past action, constituted an ongoing violation of federal law and that the state had forced NStar into agreeing to the contract with Cape Wind as a condition of the utility’s merger with Northeast Utilities.
“Ultimately we’re challenging Cape Wind’s high price contract with NStar,” Parker said.
Parker and other opponents of the project are hoping that time runs out on Cape Wind before it secures the financing needed to start construction.
The company’s contracts with NStar and National Grid expire if construction hasn’t begun by the end of 2015 and Cape Wind President Jim Gordon has said previously that he needed to close on financing by September so as to meet those construction deadlines, she said.
Gordon was using the information he had at the time when he estimated what would be needed to meet the deadlines, according to Rodgers.
“I’ve been saying for a while now by the end of the year and of course that’s approaching,” Rodgers said, adding that Cape Wind is confident it will secure the needed financing in the coming weeks.
He also dismissed the continued legal challenges facing the project.
“Project opponents including the alliance and the town have now lost 26 legal decisions and we’re past the point where weak appeals of strong decisions will impact us,” Rodgers said.
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