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US Court Revokes FAA Approval Of Cape Wind

By Gale Toensing

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Published: 08Nov2011
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A federal appeals court has dealt a critical blow to the controversial Cape Wind energy project.

On Friday, October 27, the U.S. Court of Appeals for the District of Columbia revoked the Federal Aviation Administration's (FAA) determination that the Cape Wind project would present no hazard to the 400,000 flights that travel over Nantucket Sound. The appeals court remanded the issue back to the agency for review.

The town of Barnstable, Massachusetts, and the Alliance to Save Nantucket Sound, a non-profit grassroots organization of private citizens and organization that includes the Mashpee and Aquinnah Wampanoag tribes, had petitioned the court for the review. The opponents argued that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation.

In response, the FAA claimed the petitioners did not have standing to request the review and that their claims lacked merit. But the court disagreed. "We find that petitioners do have standing and that the FAA did misread its regulations, leaving the challenged determinations inadequately justified," the three-judge panel wrote in their 14-page ruling. The ruling notes that the petitions bear the burden of providing evidence to demonstrate standing; "once provided, however, those facts 'will be taken as true,' " the ruling says, quoting case law. At this stage, however, we must assume the petitioners will prevail on the merits, … which means we must assume the FAA would determine the wind farm poses a hazard of the degree and kind the petitioners allege.

The Cape Wind project, which has been pushed by the Obama administration as America's first offshore wind farm and supported Massachusetts Gov. Deval Patrick, would construct 130 turbines across almost 50 square miles of Nantucket Sound where they would tower 440 feet above ocean level. The installation would obliterate the Mashpee and Aquinnah Wampanoag tribes' unimpeded view of the rising sun, ruining a crucial ceremony that is central to their identity and destroy the ocean bed that was once the dry land where their ancestors lived and died. Neither Aquinnah Wampanoag Chairman Cheryl Andrews-Maltais nor Mashpee Wampanoag Chairman Cedric Cromwell could be reached for comment. The Aquinnah Nation is a plaintiff in one of the many lawsuits still pending against the wind energy company.

The appeals court ruling maybe the final blow to the beleaguered Cape Wind project, according to Alliance President and CEO Audra Parker. "I'm absolutely thrilled. I think it's a major setback for Cape Wind. We've been saying all along that whether it's been a tribal review or other issue they really rushed and comprised the review process and this is a clear acknowledgment that at least with the FAA that in fact is the case," Parker said.

The FAA review is likely to take a long time, she said. "In talking to our lawyers, they've said in similar situations it's about a two-year additional review once the project goes back to the FAA so that's a significant additional burden that clearly has implications for a project that's already struggling financially," Parker said.

Last May the federal Department of Energy denied Cape Wind a $2 billion public loan guarantee that the company was counting on for financing the project. Additionally, the project has yet to secure financing or a buyer for half of its power. The Massachusetts Department of Public Utilities (DPU) approved a power purchase agreement last year for Cape Wind to sell half of its power to National Grid for 18.7 cents per kilowatt-hour (kWh) with a 3.5 percent increase each year, bringing the cost to 30 cents per kWh by the end of the 15-year license. Massachusetts's consumers paid around nine cents per kWh last year. The DPU has tried to force NStar and Northeast Utilities to purchase the other half of Cape Wind's power as a condition of their proposed merger, but on October 12, the two power companies filed court papers telling the DPU that forcing them to buy Cape Wind's high-priced electricity as a condition of their merger may violate the Constitution.

"The appeals court decision is further reason for the Patrick Administration to stop its attempts to force the state's second largest electric utility, NStar, to purchase energy from a project that will never be built," Parker said.

The appeals court ruling immediately stops Cape Wind from moving forward, Parker said. "Cape Wind can't begin construction or proceed with the project. The FAA case is the first of multiple federal lawsuits challenging this poorly sited and expensive project and is just the tip of the iceberg of the problems the courts will consider relative to the Nantucket Sound location," Parker said.

The Alliance is not opposed to wind power, but is opposed to siting the project in Nantucket Sound, Parker said. "It is time for Cape Wind and the Department of Interior to relocate this project to another site that will not only protect Nantucket Sound, but allow properly sited offshore wind development in a timely way," said Parker. "After 10 years, Cape Wind continues to face legal and financial challenges, while better and cheaper forms of green energy are widely available. The free market has shown little or no interest in Cape Wind, the federal government has refused to issue a loan guarantee for the project, and now a federal court has dealt Cape Wind a major setback in rejecting the FAA's determination."

Gale Toensing Gale Courey Toensing writes for Indian Country Today Media Network with a focus on the more political issues. Native American News

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