Court rules that FAA failed in its review of Cape Wind
FAA review failed, federal court rules
The Federal Aviation Administration failed to adequately review how difficult it could be for pilots to navigate over 25 square miles of towering wind turbines in often fog-shrouded waters of Nantucket Sound, a federal appeals court ruled yesterday, imposing another delay on the nation’s first offshore wind farm.
The US Court of Appeals for the District of Columbia rejected the FAA’s ruling that Cape Wind’s proposed 130 turbines, each 440 feet tall, present no hazard to aviation, a finding that helped form the basis of the US Interior Department’s approval of the project last year after a decade of legal challenges and delays.
“We find it ‘likely as opposed to merely speculative’ that the Interior Department would rethink the project’’ if the FAA ultimately deems the turbines a hazard to air traffic, a panel of three judges wrote in the court’s ruling.
They vacated the FAA’s decision and ordered the agency to review its findings, a process that could take years and put the $1 billion project’s lease at risk, opponents said.
“The FAA failed to supply any apparent analysis of the . . . evidence concerning the wind farm’s potentially adverse effects on [visual flight rules] operations,’’ the judges wrote.
Officials at Cape Wind Associates said they will not appeal the decision but will instead seek a new “no hazard’’ ruling from the FAA, which they said they would have had to do within 90 days anyway. A “no hazard’’ determination lasts only two years, they said, and the company has already had to secure three such findings, because of the long delay.
“The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation,’’ said Mark Rodgers, a spokesman for Cape Wind. “The essence of today’s court ruling is that the FAA needs to better explain its ‘determination of no hazard.’ We are confident that after the FAA does this, that their decision will stand, and we do not foresee any impact on the project’s schedule in moving forward.’’
But opponents of the wind farm called the court’s ruling a “resounding victory’’ in their long fight to block the turbines from marring views over a swath of Nantucket Sound.
“This represents a major setback for an already struggling project,’’ said Audra Parker, president of the Alliance to Protect Nantucket Sound, one of the plaintiffs in the lawsuit. “It is time for Cape Wind and the Department of the 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.’’
Charles McLaughlin Jr., assistant counsel of the town of Barnstable, which joined the alliance in the lawsuit, said there was no way for Cape Wind to mitigate the danger to pilots.
“I don’t think the importance of this decision can be overstated,’’ he said. “It gives validation for the first time to concerns of public safety that Cape Wind has rejected as self-centered nimbyism for a decade.’’
FAA officials declined to comment on the ruling and said it was unclear how long it would take to conduct another “no hazard’’ review, or whether a full review is required.
“FAA will review the court’s decision,’’ said Jim Peters, a spokesman for FAA New England.
Last year, long after the project was first proposed, US Interior Secretary Kenneth Salazar approved the wind farm, which was seen as a critical milestone in the nation’s effort to move away from fossil fuels.
The project has had to overcome a host of hurdles over the years, including complaints from two Wampanoag Native American tribes that the turbines would disturb spiritual sun greetings and ancestral artifacts and burial grounds on the seabed.
Cape Wind, which has reduced the size of the project, had planned to start construction about 5 miles off Cape Cod by the end of last year. But the company so far has struggled to find enough buyers of its electricity, making it hard to secure financing to build the turbines.
Cape Wind has been seeking customers other than National Grid, one of the state’s largest utilities, which has agreed to buy half its power. It has urged state regulators to require that a proposed merger between NStar and Connecticut-based Northeast Utilities include a condition that they buy 50 percent of the power generated by Cape Wind.
But the utilities have bridled at Cape Wind’s lobbying, arguing that such a requirement would be unconstitutional.
State officials and renewable energy advocates said they are reviewing yesterday’s court ruling and hope that it will not blunt the project’s progress.
“Cape Wind has undergone an exhaustive review by all levels of government over the course of the last 10 years,’’ Rick Sullivan, secretary of the Executive Office of Energy and Environmental Affairs said in a statement. “The Patrick-Murray administration believes renewable energy is good for Massachusetts from the standpoint of jobs, the environment, and our clean energy future.’’
Sue Reid, vice president of the Conservation Law Foundation, called the ruling “an unwelcome development.’’
“But it’s not an insurmountable obstacle,’’ she said.
Correction: In a previous edition of the story, Rick Sullivan was identified as commissioner of the Executive Office of Energy and Environmental Affairs. His proper title is secretary of the Executive Office of Energy and Environmental Affairs.