Cape Wind foe retains legal scholar

Cape Wind opponent Alliance to Protect Nantucket Sound has retained noted constitutional law professor Laurence Tribe to argue its appeal of a federal court decision that dismissed a multi-party challenge of the developer’s power supply contract with utility NSTAR.

Cape Wind signed a 15-year PPA with NSTAR in 2010 covering 27% of the project’s 468MW nameplate capacity for 18.7 cents per kWh, with a 3.5% annual adjustment. The Massachusetts Department of Public Utilities (DPU) approved the deal in November 2012.

In a May ruling, Judge Richard Stearns of the US District Court, District of Massachusetts, rejected all claims against Cape Wind, NSTAR and the state brought by the Alliance, the Town of Barnstable and various businesses.

It was the 26 legal ruling since August 2003 in favor of America’s likely first commercial-scale offshore wind farm.

Stearns is a former student of Tribe’s at Harvard Law School. The Alliance and others filed the appeal this month to the US Court of Appeals in Boston.

The original lawsuit argued that Massachusetts regulators had discriminated against out-of-state power companies – despite their lower costs – by pressuring NSTAR to buy power from Cape Wind based in Boston.

The suit also alleged that Massachusetts regulators also exceeded their authority in setting wholesale rates for this contract, an action reserved for the Federal Energy Regulatory Commission (FERC).

In his decision, Stearns noted that the lawsuit would itself violate the 11th Amendment to the US Constitution that gives states legal immunity for past actions in Federal Court.

He wrote, “The allegation that DPU dictated that NSTAR procure power from Cape Wind at a specified price is misleading and ultimately untrue."

Stearns added: "But in this case, the Governor, the Legislature, the relevant public agencies, and numerous courts have reviewed and approved the project and the PPA with NSTAR and have done so according to and within the confines of the law. There comes a point at which the right to litigate can become a vexatious abuse of the democratic process. For that reason, I have dealt with this matter as expeditiously as possible."

In a statement, the Alliance says that the legal team that Tribe will head will likely argue that Stearns misinterpreted the Eleventh Amendment.

"The opinion of the district court relied on and quoted what my treatise on the Constitution had said about the Eleventh Amendment to reach a conclusion that neither I nor, much more importantly, the US Supreme Court, would agree with – a conclusion that would make that relatively narrow constitutional provision a veritable engine of destruction for otherwise valid constitutional challenges to state laws, policies, and actions," Tribe is quoted as saying in the statement.

Cape Wind hopes to have the project in commercial operation in fourth quarter 2016.

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