Cape Wind project scores legal victories

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In a set of major legal victories for the federal government and for Cape Wind, U.S. District Judge Reggie B. Walton issued rulings against project opponents in their four lawsuits that had challenged Cape Wind’s permitting approval by the U.S. Department of Interior (DOI).

In his rulings, Judge Walton upheld the DOI's review and approval of Cape Wind, a permitting process that took 10 years. The court rejected the plaintiffs’ request to vacate the granting of the nation’s first offshore wind lease by the DOI to Cape Wind.

Walton rejected a long list of legal claims project opponents had raised, including arguments over navigational safety, alternative locations, alternative technologies, historic preservation, Native American artifacts, sea turtles and the adequacy of the project’s environmental impact statement and biological opinions.

In two narrow instances, Judge Walton has asked federal agencies to clarify its findings on whales and birds. The order indicates that the case is administratively closed until the court is provided with the clarifications. Cape Wind expects these two compliance actions to be minor agency administrative actions that will not impact Cape Wind’s financing schedule.

These legal challenges were heard by the court on a consolidated basis and were fully briefed in August, 2013. Environmental organizations such as the Natural Resources Defense Council, the Conservation Law Foundation of New England, and the Massachusetts Audubon Society intervened by filing amici curiae papers in support of Cape Wind and the government.

The four legal challenges decided were originally filed in 2010 by the opposition group to Cape Wind (Alliance to Protect Nantucket Sound), the Town of Barnstable, the Aquinnah Wampanoag Tribe and the Public Employees for Environmental Responsibility. The failed lawsuits had challenged Cape Wind’s permitting approvals by Federal agencies on the grounds of the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Birds Treaty Act, the National Historic Preservation Act, the Outer Continental Shelf Lands Act, the Coast Guard and the Maritime Transportation Act of 2006.

Prior to today’s decisions, Cape Wind has consistently won a series of legal challenges brought by project opponents, largely funded by coal and petroleum coke magnate William Koch. Most recently with a victory in Federal Court upholding the FAA’s 4th approval of Cape Wind in January of this year.

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