Cape Wind goes to court again

STATE HOUSE NEWS SERVICE

Cape Wind, the offshore wind project planned for Nantucket Sound, has not given up despite some serious setbacks, and this week appealed to the Supreme Judicial Court a state board decision denying the project’s request for extensions of critical subsea and on-shore transmission facility approvals.

In an appeal dated Tuesday, Charles Dougherty of the Boston-based Cape Wind Associates asked the state’s highest court to reverse the April 6 decision of the Energy Facilities Siting Board and remand the case to the board to enter a final decision granting the transmission-related requests.

Cape Wind claims that the siting board exceeded its authority and asserts the decision to deny a two-year extension of transmission permits “is based on errors of law, is made upon unlawful procedures, is unsupported by substantial evidence and lacks requisite subsidiary findings and is arbitrary and capricious, an abuse of discretion . . . “

The board’s prior approvals authorized in-state portions of Cape Wind’s proposed transmission lines that would connect with the wind farm located in federal waters. In the appeal, Cape Wind asserts that the siting board interfered with “the exercise of the exclusive federal authority of the United States Bureau of Offshore Energy Management” regarding a project “located in federal waters outside of the boundaries and regulatory jurisdiction of the Commonwealth.”

In April 2010, former Interior Secretary Ken Salazar approved the 130-turbine wind farm in Nantucket Sound, calling it “the final decision of the United States of America” and saying he was “very confident” the long-awaited verdict would withstand opposition. Former Gov. Deval Patrick joined Salazar at the State House for that announcement and said at the time that he expected construction to begin “within a year.”

Project supporters hailed the decision as a milestone in state and national renewable energy efforts, but project critics – saying Cape Wind was poorly sited and its energy too expensive for consumers – vowed legal battles to stop Cape Wind from ever being built.

On Dec. 31, 2014, National Grid and Northeast Utilities terminated their power purchase agreements with Cape Wind, noting the project had missed contract deadlines established in 2012 to secure financing and begin construction on Dec. 31, 2014. The development was a blow to Cape Wind’s financing and the project has largely stalled since then, with public officials, including Patrick, subsequently calling into question whether Cape Wind would ever be built and noting the steady stream of legal challenges the project has faced from its opponents, including the Alliance to Protect Nantucket Sound.

“It shows really that Cape Wind is not giving up,” alliance executive director Audra Parker said, adding that she has hoped for 14 years that project officials would give up.

In the board’s April 6 decision, siting board presiding officer James Buckley wrote that evidence presented by Cape Wind alleging that the background conditions relative to the review of the project have not changed was “unpersuasive.”

“While Cape Wind insists that May 1, 2017, remains a reasonable extension period, it cannot provide any project schedule that it considers reliable,” Buckley wrote. He added that the “lack of progress, and indeed regression” on the project over the past year was “instructive.”

More than 12 years have passed since the record closed on the board’s original approval of project requests in 2005, he wrote, and “at this time, Cape Wind needs a lengthy, almost open-ended extension period.”

“At some point, such as where the Siting Board now stands with respect to the Project, the validity of record used in that examination becomes unreliable and untenable with the prolonged passage of time,” Buckley wrote. “In such extreme circumstances, as in this proceeding, extensions of prior approvals must cease and a project proponent must start the process anew for a project to merit Siting Board approval.”