Appeals Court rules Cape Wind case can move forward; Faltering Nantucket Sound project hit with another setback
A suit brought by Cape Wind foes who claim the role of Gov. Deval Patrick’s administration in a power purchase agreement between a utility and the offshore wind energy developer was unconstitutional will return to U.S. District Court after being dismissed a year ago.
The town of Barnstable, Alliance to Protect Nantucket Sound and several individuals and businesses had filed the suit arguing that officials at the state Department of Public Utilities and state Department of Energy Resources had pressured Eversource (then NStar) into signing an agreement to buy 27 percent of the power produced by Cape Wind in 2012, in exchange for the approval of a merger with Northeast Utilities.
The U.S. Court of Appeals on Monday ruled district court Judge Richard Stearns erred by dismissing the case in May 2014 because he had based his decision on the 11th Amendment. The Constitutional provision prohibits citizens from suing a state in federal court for past actions.
Cape Wind’s opponents appealed Stearns’ ruling.
The U.S. Court of Appeals determined the case would fall within an exception to the 11th Amendment. The court disagreed that the disputed action taken by the state was in the past and essentially moot because Eversource and Cape Wind had differing opinions regarding the status of the power purchase agreement.
The proposal to construct 130 wind turbines in Nantucket Sound sustained a major setback in January, when National Grid and Eversource terminated agreements to buy power from the project after Cape Wind failed to meet some benchmarks for financing and other requirements.
Cape Wind Vice President Dennis Duffy said he was pleased the appeals court had recognized that the power purchase agreements weren’t necessarily dead.
“Although the court didn’t address the merits of the opponents’ claims, it did recognize that the continued effectiveness of the power contract remains an unresolved issue,” Duffy said.
Eversource spokesman Michael Durand says his company has not changed its position that the power purchase agreement with Cape Wind has been terminated.
“Cape Wind was required to secure financing and begin construction by 12/31/14,” Durand wrote in an email. “Cape Wind missed these critical milestones and chose not to exercise their right to post financial security in order to extend the contract deadlines.”
Harvard Law School Professor Laurence Tribe, who co-wrote the legal brief for the appeal by Cape Wind foes, was pleased with Monday’s outcome.
“I am gratified that basic principles of legal accountability have been upheld by the Court of Appeals so the suit can now move forward,” Tribe wrote in a statement emailed to the Times by the project’s primary opposition group, the Alliance to Protect Nantucket Sound.
Audra Parker, president and CEO of the alliance, sees the court case as another obstacle for the struggling wind farm.
“The appeals court victory means Cape Wind now faces another large hurdle in establishing its contract with NStar remains in effect,” Parker wrote in the emailed statement.
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