Cape Wind wins suit, faces another

The developer of Cape Wind won a legal battle over project opponents after the US Court of Appeals for the District of Columbia Circuit upheld the Federal Aviation Administration’s approval of the proposed 468MW offshore wind farm.

“The court's definitive decision is an important legal victory that brings America that much closer to launching its offshore wind industry, a keystone in America's renewable energy future," says Cape Wind communications director Mark Rodgers.  The project developer is Cape Wind Associates, which is owned by Energy Management Inc. (EMI).

He notes the ruling was made by the same court and only one that had previously provided project opponents their temporary relief from the FAA decision. The agency had ruled in 2012 that none of the project’s planned 130 turbines “would have an adverse effect on the use of air navigation facilities or navigable airspace."

Cape Wind is the first US utility-scale offshore wind project and will be located in Nantucket Sound south of Cape Cod. It is the only one that is fully permitted.

Separately, the project, first proposed more than 12 years ago, faces a new lawsuit filed Tuesday in US District Court in Boston.

The Alliance to Protect Nantucket Sound, which was a plaintiff in the FAA case, several businesses in the Village of Hyannis and the Town of Barnstable allege that Massachusetts regulators discriminated against out-of-state power companies, despite their lower costs, by pressuring utility NStar to buy electricity from Cape Wind.

The lawsuit also alleges that regulators exceeded their authority in setting wholesale rates for the 15-year power purchase agreement - action it asserts is reserved for the Federal Energy Regulatory Commission (FERC).

It also asserts that regulators refused to support NSTAR’s long-sought merger with Connecticut power company, Northeast Utilities, until NSTAR contracted to buy the higher priced Cape Wind power. 

The Department of Public Utilities in November 2012 gave approval to the deal following an eight-month adjudicatory proceeding. The agency rules that contract benefits exceeded costs for the state and that ratepayers were adequately protected.

States may not promote green power by “dictating that such projects receive favorable rates and terms for their wholesale electricity sales,” the Alliance asserts in a press release.

The contract, which was due to take effect in 2013, covers 27.5% of Cape Wind’s nameplate capacity. The base price is 18.7 cents/kWh with a 3.5% inflation adjustment.

The Alliance and other opponents have sought to kill or delay the project with a flood of lawsuits.

Cape Wind has gained momentum in the past year by signing a turbine supply contract with Siemens, and a term sheet to engage The Bank of Tokyo-Mitsubishi UFJ as coordinating lead arranger of the commercial bank portion of total project debt financing.

PensionDanmark, a Danish pension fund, has also agreed to make a $200m investment in Cape Wind, if the developer can nail down project financing.