May 21, 2015
Massachusetts

Suit over pricey wind energy revived in Massachusetts

Suit Over Pricey Wind Energy Revived in Mass. | By JACK BOUBOUSHIAN | Courthouse News Services | May 20, 2015 | www.courthousenews.com

The 1st Circuit revived claims that unconstitutional orders from Massachusetts forced an energy company to buy overpriced wind-turbine electricity.

Barnstable, a town on Cape Cod home to the affluent village of Hyannis, brought one of the lawsuits at issue, along with various businesses and individuals that oppose plans for an offshore wind-power-generation facility in Nantucket Sound.

They contend that Massachusetts cut a deal that required NStar Electric to buy electricity from Cape Wind, though cheaper energy was available out of state.

Claiming that the increased energy costs will cost consumers $1 billion over the lifespan of the 15-year contract, Barnstable said the “power-purchase agreement” came to pass because the state Department of Energy Resources “threatened to erect various regulatory roadblocks to the merger unless NStar executed a contract to buy electricity from Cape Wind on substantially the same terms and conditions that another of the Commonwealth’s utilities, National Grid, had agreed to several years earlier.”

A federal judge tossed the suit for jurisdictional reasons, however, finding that the claims implicate sovereign immunity under the 11th Amendment.

This analysis failed to sway the 1st Circuit, which revived the case Monday since the 11th Amendment’s bar hinges on demands for damages or restitution.

The Boston-based federal appeals court emphasized that Cape Wind’s opponents have characterized the continued enforceability of the power-purchase agreement as “an ongoing violation of federal law because Order 12-30 binds the parties to abide by the PPA’s allegedly unconstitutional terms.”

Since Barnstable and the others want to prevent future contract performance and avoid hypothetical damages, the relief they seek is prospective, according to the ruling.

Apart from a renegotiation of a contract that they claim will force them to pay higher electricity rates, the plaintiffs do not seek monetary relief, the court found.

Crucial to the trial court’s finding was the mistaken concern that the suit would frustrate state efforts to implement policies enunciated in the Green Communities Act and Global Warming Solutions Act, according to the ruling.

Writing for a three-person panel, Judge Williams Kayatta said precedent indicates that “a plaintiff may frustrate the efforts of a state policy when those efforts violate or imminently threaten to violate the plaintiff’s constitutional rights.” (Emphasis in original.)

The Nantucket Sound wind farm has been tremendously controversial in New England, splitting environmentalists who might be expected to support a clean, renewable energy source.

In addition to the concern for sea bird population, yachters and boaters have taken the position that the enormous windmills will ruin the beauty of the sound.

Cape Wind’s website says its facility will be the first offshore wind farm in the United States, producing more than 420 megawatts of power and reducing “global warming greenhouse gas emissions by 734,000 tons per year.”