Cape Wind faces new legal appeal

Geophysical survey work being performed at the Cape Wind site.

Geophysical survey work being performed at the Cape Wind site.

Local opponents of Cape Wind have filed a legal brief with the US Court of Appeals in Boston in their latest effort to block America’s first commercial offshore wind project.

The Alliance to Protect Nantucket Sound, the Town of Barnstable and local companies and residents are seeking to overturn a lower court decision dismissing their earlier lawsuit that asserted the State of Massachusetts illegally “coerced” electric utility NStar into a 15-year power off-take deal with Cape Wind.

Cape Wind communications director Mark Rodgers dismissed the appeal’s legal chances, saying: “Project opponents have now lost 26 legal decisions and with this filing they are heading to 27."

The 2010 pact between Cape Wind and NStar covers 27% of the project’s 468MW nameplate capacity for 18.7 cents per kWh with a 3.5% annual adjustment. State regulators approved the agreement in November 2012.

The plaintiffs argue that US District Court Judge Richard Stearns' ruling in May was "gravely flawed" because he “seriously misinterpreted” the US Constitution’s 11 Amendment in dismissing the case. The Amendment generally protects individual states from lawsuits in federal courts brought without their consent.

The brief specifically argues that Massachusetts illegally used its regulatory power to shield Cape Wind from out-of-state competitors that offer much cheaper power.

It further argues that the state – in particular the Department of Energy Resources and the Department of Public Utilities – acted illegally in their attempts to coerce NSTAR to purchase Cape Wind power at above market rates in exchange for approving the utility’s merger with Northeast Utilities.

It asserts that NStar’s own estimates show that the PPA with Cape Wind would raise electricity bills for its customers by nearly $1bn over the contract life.

The appeal was authored in part by Harvard constitutional law professor Laurence Tribe, who contends that Stearns ruling relied on and quoted what his treatise on the Constitution had said about the Amendment to “reach a conclusion that neither I nor, much more importantly, the US Supreme Court, would agree with.”

He goes on to say that Stearns’ ruling would make that constitutional provision a “veritable engine of destruction for otherwise valid constitutional challenges to state laws, policies, and actions.”

Cape Wind's Rodgers says that the project foes are “making the same failed arguments they made last time, which the judge called 'misleading and ultimately untrue'”.

Cape Wind has fended off multiple lawsuits since parent Energy Management Inc. first submitted permit applications for the project in November 2001.

EMI hopes to begin cable route construction later this year with ocean construction in 2015. The goal is to have the initial 363MW (101 turbines) project in commercial operation in fourth quarter 2016.

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