Call it another nail in Cape Wind’s coffin or a breath of life for the beleaguered project: It depends on who’s talking.
Both Cape Wind and its opponents said they are pleased with an appellate court decision that calls for the offshore wind energy developer to address concerns about geological stability and threats to migratory birds but falls short of vacating Cape Wind’s offshore lease.
“It’s a terrific win and an important win,” said Charles McLaughlin, assistant town attorney for Barnstable which is one of the plaintiffs challenging Cape Wind in the case against the U.S. Bureau of Ocean Energy Management. “But the project is not dead yet.”
Cape Wind officials are very pleased, said Dennis Duffy, vice president of regulatory affairs for the company.
“We’ll press forward,” he said.
In an opinion filed for the U.S. Court of Appeals for the District of Columbia Circuit, Senior Circuit Judge A. Raymond Randolph found the federal ocean energy bureau violated the National Environmental Policy Act by failing to take a “‘hard look’” at whether the floor of Nantucket Sound could bear 130 proposed wind turbines in Horseshoe Shoal.
The court also found the U.S. Fish and Wildlife Service was “arbitrary and capricious” in disregarding evidence that a proposal to halt the turbines during poor visibility to protect birds would have a “minuscule” economic impact on the wind farm.
But the court stopped short of vacating Cape Wind’s lease or other regulatory approvals, and it upheld the district court’s dismissal of a slew of other claims, including a claim that the ocean energy bureau and the U.S. Coast Guard had violated the Marine Transportation Act.
“Cape Wind is pleased that with today’s federal court decision the bulk of baseless issues that opponents have raised over the years are put to bed,” Cape Wind President Jim Gordon wrote in an email. “The court remanded only two matters, neither of which should involve substantial delays.”
But Audra Parker, president and CEO of the Alliance to Protect Nantucket Sound – one of the other plaintiffs in the case – called the decision “a victory for the fishermen, pilots, boaters, native Americans, environmentalists, homeowners, towns and businesses, which have fought to protect Nantucket Sound against Cape Wind for 15 years.”
“Cape Wind must go back to the drawing board and supplement their environmental impact statement with adequate data to properly assess whether the project can be safely built, given seafloor conditions in Nantucket Sound,” she wrote.
The court decision requires a new analysis of measures to protect endangered species including the roseate tern and the piping plover and also spells out Cape Wind’s need for a permit under the Migratory Bird Treaty Act, Parker wrote.
Cape Wind already has updated research on the stability of the subsurface of Nantucket Sound, while another look will be taken at the issue of the safety of migratory birds, Duffy said.
A “district court judge will do something to wrap up those two issues,” he said.
But McLaughlin said it is too soon for Cape Wind to make plans to proceed with the project for which it first sought government approval in 2001.
The court rulings could have an impact on future decisions by the state Energy Facilities Siting Board, he said.
In April the siting board denied the extension of permits that would allow Cape Wind to build an electricity transmission line to connect its proposed offshore wind farm to land. Cape Wind has appealed the board’s decision to the state Supreme Judicial Court.
Last year, the proposed wind farm suffered a major blow when Eversource Energy and National Grid canceled contracts to buy power from the 130-turbine wind farm. State lawmakers are currently working on an energy bill that could exclude Cape Wind from bidding on new offshore wind energy contracts.
But Cape Wind still holds a 46 square-mile lease on the sound, Parker wrote.
“At present, the lease is suspended through next year per Cape Wind’s request,” she wrote. “So long as that 28-year lease can be revived, Cape Wind’s developers will continue to press ahead with attempts to either build their massive 130 turbine project or sell that lease to another potential developer.”
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