Monday, January 31, 2005

Supreme Court Won't Weigh in on Cape Wind Project

Via friday's edition of the the Cape Cod Times:
The U.S. Supreme Court yesterday rejected a public request to review a 2004 court decision that affirmed the federal government's primary authority over the proposed Nantucket Sound wind farm.

A coalition of groups called the Ten Taxpayers Citizens Group had argued that Massachusetts should have authority over the Cape Wind project - particularly, a meteorological data tower already being operated - since the state governs fishing on the sound.

While the data tower has been in operation for two years, the lawsuit posed the larger question of jurisdiction and whether the proposed wind farm is subject to the state permitting process.

Cape Wind officials say the decision reaffirms that the data tower is located in federal waters, and the federal government should have primary authority.
Federal law provides the U.S Army Corps of Engineers exclusive authority over projects that are within territorial U.S. waters, but more than three miles from shore. Opponents of the Cape Wind Project, a 130-turbine project proposed in Nantucket Sound, were challenging this exclusive grant of authority, claiming that the State of Massachusetts should have a larger role in the permitting process. The Massachusetts Federal District Court dismissed their challenge to the Corps jurisdiction a short 6 page opinion in 2003: Ten Taxpayers Citizen Group v. Cape Wind Associates, Inc. (pdf of case made available via LUCE Wind & Wave Blog). The First Circuit Court of Appeals upheld the District Court's decision in 2004, and the Supreme Court's refusal to consider the issue means that the District Court's decision will stand.

However, the decision in the Ten Taxpayer case does not rule out other potential challenges to the Cape Wind project under federal law. The Corps recently published a 3800-page Draft Environmental Impact Statement (DEIS) of the project, and project opponents are widely expected to challenge that document as inadequate under the National Environmental Policy Act (NEPA) if the Corps ultimately authorizes the project.