Cape Wind: Regulation, Litigation And The Struggle To Develop Offshore Wind Power In The U.S.
“I can’t think of anything more benign” than an offshore wind farm, says Jim Gordon, President of Energy Management, Inc., which is behind the Cape Wind project. (AP Photo/Rebirth Productions)
In 2001, Jim Gordon, a well-heeled developer of natural gas plants in New England, took up a long-discussed but never-pursued idea that advocates said would usher in a new era of clean energy in America: an ocean-based wind farm off the shores of Cape Cod.
The advantages of the site seemed plain: Relentless, hard-driving winds, shallow shoals several miles offshore on which to anchor large turbines, and, perhaps most importantly, a left-leaning population inclined to support what was already viewed at the time as an overdue migration away from dirtier sources of electricity.
“We have real and looming environmental problems on the horizon,” Gordon told reporters that summer, as he prepared to apply for the necessary federal and state permits. “Is this going to solve these problems? No. But it is going to help.”
Almost 12 years later, the now 59-year-old Gordon, who graduated from Boston University during the 1970s oil crises with a degree in communications and, he says, vague designs on film school before he set his sights on the energy business, is still pressing his case. Not a single turbine is in the water.
Acquiring the full array of government permits and sign-offs — a byzantine process involving dozens of sometimes overlapping, often contradictory agencies, hundreds of officials and thousands of pages of impact statements — took over a decade. And more than a dozen lawsuits, citing everything from potential disruption of whale and bird migrations to interference with airplane and shipping traffic, the wrecking of commercial fishing grounds and the desecration of sacred Native American sites, have thrown sand in the project’s gears at every turn.
Virtually all of the opposition suits over the years have been rejected ultimately by the courts, but at least four more are still pending, and opponents promise to keep fighting.
To be sure, as the first proposed offshore wind project in the United States, Cape Wind, as it is called, was bound to encounter unique scrutiny, and like any undertaking of its size, it is not without environmental impacts. But the long-thwarted wind farm also highlights what some critics say has become a bloated and overly complicated regulatory maze through which fewer and fewer project developers of any kind have the wherewithal to navigate.
Indeed, while it has earned the backing of virtually every major environmental group — including the Sierra Club, the Natural Resources Defense Council, Greenpeace and others — the government’s unhurried review of the project cost tens of millions of dollars more than it would have in countries with more streamlined permitting processes. And even now, Cape Wind remains stuck in a briar patch of legal challenges to its siting, mostly filed by a small but determined coalition of local residents and unusually wealthy property owners in the area who have no incentive to relent.
It is a dilemma that developers of major infrastructure projects know all too well, and one that some critics say is in dire need of reform. “There has to be a better way,” said Matthew Brown, an attorney with Common Good, a nonpartisan group seeking ways to overhaul governmental and legal systems to streamline the approval or rejection of major projects of all kinds. “It shows just exactly how far away from the purposes of the process the actual reality has come,” Brown said, “because environmental review, and the lawsuits attending it, now actively thwart environmentally positive projects like Cape Wind.”
During his State of the Union address last week, President Barack Obama declared that, “for the sake of our children and our future, we must do more to combat climate change,” and he promised to “speed the transition to more sustainable sources of energy.” But just what an idealized project-permitting system might look like — for clean energy or any major infrastructure project — remains a matter of debate. Environmental and citizen groups are understandably loath to limit access to the courts, or to overhaul a regulatory machinery that, for all of its messiness, affords them a good deal of leverage against deep-pocketed developers of far more menacing projects than Cape Wind.
And while the Nantucket wind farm appears to be nearing the end of its own legal and regulatory limbo, it still remains too soon to say with any certainty when — or even if — the project will be built.
This, critics say, needs to change.
“I can’t think of anything more benign in terms of impact than an offshore wind farm, compared to our other energy choices,” said Gordon, who estimates that he has spent at least $65 million working through the regulatory hurdles and fighting lawsuits. “I think that within a certain time frame, maybe having a one-stop agency where the cooperating agencies kind of put in their concern, and the public goes before it and — we should absolutely have public hearings. We have had an extraordinary amount of public hearings on this project. And written comments. That shouldn’t stop. All I’m saying is that there needs to be a reasonable time frame for an up or down decision.
Twelve years and counting, Gordon added, is simply too long for any project to sit on the drawing board while regulators and on-the-ground stakeholders squabble over details. “Most projects and most developers that would get involved in a process like that would probably throw up their arms and walk away,” he said. “And for some worthy projects, that would be a shame.”
KICKSTARTING AN INDUSTRY
On a blustery, early winter day, with a cold, driving rain pelting the windshield, Cape Wind’s longtime spokesman, Mark Rodgers, eases his car into an empty parking lot at Cape Cod’s Craigville Beach in Centerville, Mass. The hamlet is about 3 miles southwest of Hyannis and located midway along the tricep of the cape, a long, narrow peninsula that stretches out into the Atlantic and then curls up and back, like the flexed arm of a swaggering bodybuilder
Rodgers takes a spot facing due south, into the great emptiness of Nantucket Sound.
“We knew from the beginning we had to pass two critical tests,” Rodgers said. “We had to permit the project, and we had to finance the project. And when you’re financing a project, novelty is bad. And we knew, by being America’s first offshore wind farm, that we were going to be novel. So we wanted to make everything we could about the details of the project to be as un-novel as possible. We wanted the most optimal engineering site characteristics we could find.”
The project’s corporate developer, Jim Gordon’s Energy Management Inc., which had been building natural gas power plants for nearly 20 years prior to taking interest in an offshore wind project, found in Nantucket Sound what it considered to be the most advantageous offshore spot anywhere from Maine to New Jersey: Horseshoe Shoal
The shoal itself was sandy and shallow — generally less than 45 feet deep — which makes anchoring the turbines to the seabed easier, and the entirety of the 25 square mile project area, surrounded by the cape to the north, the islands of Martha’s Vineyard to the west, and Nantucket Island to the east, would be protected from the often punishing, 50-foot swells of a stormy North Atlantic sea.
Sending the power generated by the giant turbines back to shore would be a relatively simple affair via undersea cables, and unlike the multiplying land-based turbines in the windy midsection of the country from West Texas to Nebraska and the Dakotas, Cape Wind would be comparatively close to the power-hungry metropolitan areas of the Northeast — another advantage, supporters noted. All of the turbines would also be at least 5 miles away from coastal properties — a sufficient distance, the developers had hoped, to avoid undue imposition on residents and summertime vacationers.
The 130 turbines, each standing 258 feet tall from water to hub and with anywhere from six to nine football fields of open water between them, would be as close to Craigville Beach as nearly anywhere, and their massive fiberglass blades would reach 440 feet above sea level — well higher than the tip of the Statue of Liberty’s torch — at their highest rotation.
On a clear day, they would be unmistakably visible from this parking lot: A row of thin hash marks along the horizon, according to photographic simulations produced by Cape Wind
Collectively, the spinning turbines would have a nominal capacity of 468 megawatts, but this is an idealized energy-industry metric representing the site’s output if the winds blew strong and steady at all times, and all turbines were spinning continually at maximum capacity. In the real world, of course, that never happens, and the average power output would likely be somewhere between 30 percent and 40 percent of that maximum capacity. Critics hew to the lower end of the range, supporters the higher, but Cape Wind estimates that the average output of the facility would represent about 75 percent of the typical electricity demand for the Cape and its nearby islands.
That may seem small, but backers have argued that a rapid expansion of offshore wind farms along the nation’s coasts could provide, in aggregate, a substantial and reliable power resource. And from Cape Wind’s earliest days, advocates noted that clean-energy development in the U.S. was already lagging woefully behind other parts of the world, principally Europe, which had already spent a decade developing offshore wind power by the time Cape Wind was first proposed. Today, there are more than 1,600 offshore wind turbines at 55 different facilities and representing more than 3,800 megawatts of capacity connected to the European grid, according to the European Wind Energy Association. Several that would dwarf Cape Wind in size and output are already being planned.
China, a gluttonous consumer of coal-fired electricity, nonetheless has at least one commercial-scale offshore wind farm of its own, and several more are in the works.
There are still no offshore wind farms in the United States.
To supporters of renewable energy, this is inexplicable, particularly given the imperatives of climate change and the comparative social advantages of clean power. A year of operation of a comparable coal power plant, Cape Wind’s developers say, could produce as much as 1.5 million tons of carbon dioxide — the leading planet-warming gas — and tens of thousands of tons of other airborne chemicals and pollutants, including nitrogen oxides, sulfur dioxides and asthma-inducing particulate matter. Natural gas-powered plants are much cleaner, but they still have abundant emissions.
A year of operation of an offshore wind farm like this produces no such pollution.
Of course, even accepting these benefits, opponents have fought tenaciously to keep it out of Nantucket Sound. As the project has inched its way through an obstacle course of state and federal agency approvals — 17 in all, by Rodgers’ count — critics have challenged each approval with relish in court. In fact, the project has been in an indeterminate state for so long that it has been the subject of at least two books, hundreds of editorials and a pair of documentary films, including last summer’s “Cape Spin” — described by The New York Times as a “tragicomic” look at one of the nation’s most protracted energy infrastructure battles
“It was the first offshore wind farm proposed in the U.S., and the nation lacked a clear regulatory path established for how such a project would get approved,” Josh Levin, one of the film’s producers, told the Times last June. “Whether you are a green person or not, whether you are a renewable energy person or not, whether you’re a pro-business person or not, there is a cost to the United States having no effective energy policy.”
When the Cape Wind project received its final nod from the Interior Department in the spring of 2010 — already a decade after the project was first proposed — the editorial board at The Wall Street Journal chuckled. Having long decried the nominally higher costs of wind power relative to fossil fuels, the generally conservative newspaper had never been a friend to the Nantucket wind farm. But it had even deeper disdain for the protracted regulatory and judicial review that had kept the project in limbo for so long.
“Contemplate this depressing change in America’s can-do spirit,” the editorial suggested. “The 6.6 million-ton Hoover Dam that tamed the mighty Colorado River was finished in 1936 after a mere five years. Yet 130 offshore wind turbines, a pioneering project of President Obama’s ‘new energy economy,’ may take three times as long to complete.”
Three more years have slipped by since that editorial was written.
To be sure, Cape Wind was challenged in part by its uniqueness. The U.S. had no history of permitting offshore wind farms — a task that fell initially to the Army Corps of Engineers, which took roughly three years from the time the project was first proposed to prepare a lengthy Draft Environmental Impact Statement, as required by the decades-old National Environmental Policy Act. Some 5,000 public comments were submitted on that draft, but it would be quickly rendered moot by passage of the Energy Policy Act in 2005, which shifted jurisdiction for offshore wind permitting from the Army Corps to the Department of the Interior.
To the dismay of Gordon and his partners, Interior decided to pursue its own environmental review, which would not be published in draft form until three years later, in early 2008. A final environmental impact statement was completed in January 2009.
“Sure, we can chalk it up to the fact that this was the first proposed offshore wind farm in the United States and that we were paving new ground,” Gordon said, “but there have been structures permitted in the water for many decades. There have been fiber optic cables, weather towers, bridges, piers, docks, things like that.”
On its face, a NEPA review would seem straightforward
The various environmental impact statements and reports prepared for Cape Wind, representing years of work and thousands of pages. Although the covers of many of the binders are the same, the contents are all different, says Cape Wind’s spokesman, Mark Rodgers.
In some cases, proposals that are similar to other projects that have already undergone a full-bodied examination and that were found to have no significant impacts can obtain a so-called categorical exclusion and move on. When a full-fledged environmental impact statement is called for, the law requires the permitting agency to provide a general discussion of the purpose and need for the project, as well as a review of potential alternatives. It also requires a description of the affected environment and the attending consequences of building and operating the project.
In practice, this can involve an excruciating level of detail and extensive consultation with agencies far and wide. Each consulting agency is expected to put relevant aspects of the proposal under its own microscope, with the goal that every potential impact on people, traffic, animals, plant life, soil, waterways, air quality, air travel and other elements, however small, is assessed and characterized as “negligible,” “minor,” “moderate” or “major.”
In the case of Cape Wind, the project would be noisy and increase traffic during construction, for example, and the extent of this had to be weighed and documented. It would alter seaside vistas, so simulations of how the turbines might look to people on shore and even to boaters on the water had to be created; and because the giant spinning blades will undoubtedly kill birds and bats, potential impacts on all bird species that might fly across Horseshoe Shoal had to be calculated. The seabed on the shoal would be significantly disturbed during construction, and some fish populations would be affected. So too would popular commercial fishing areas, and the massive transmission cables would have impacts all along their length as well.
Because the proposed site is located more than 3 miles from shore — the line where state law generally ends and federal jurisdiction begins — Cape Wind, like many offshore projects, also triggered the full complement of oversight, because construction staging, shore-bound electric cables and other aspects of the endeavor must also adhere to state guidelines.
Over the course of nine years, all of this was considered, opened for public comment, and then reconsidered again. In nearly all cases, according to the final review document, the impacts were declared to be negligible, minor or moderate.
In the minds of many green advocates, this level of scrutiny has done wonders over the last 40 years to keep economic development smart and the environment safe. But the multiplicity of agencies involved, the lack of strict time frames, and the reflex to gird against lawsuits have also dramatically lengthened the review process, many critics say, not just for Cape Wind but for all manner of major infrastructure projects in the U.S., from road and bridge improvements to power plants and transmission lines.
In a paper published in the journal Environmental Law in December, Jeffrey Thaler, a professor of energy policy, law and ethics at the University of Maine, noted that there are currently as many as “50 different federal environmental and wildlife statutes and executive orders, largely enacted or promulgated since 1980 that create a daunting gauntlet of regulatory hurdles.”
Thaler added that by his own informal count, there are over 63,000 pages of such regulations dealing with environmental, energy, resource management and wildlife at the federal level — and untold thousands more at the state level.
Last June, the New York, New Jersey & Connecticut Regional Plan Association’s “America 2050″ program, which takes a broad look at national infrastructure planning and policy, published an analysis of NEPA that bore some startling statistics.
Titled “Getting Infrastructure Going: Expediting the Environmental Review Process,” the study found that:
In the 40 years since the passage of the National Environmental Policy Act and the development of the current federal regulatory process, the practice of completing environmental reviews for major infrastructure projects has significantly lengthened average project delivery times. For example, in 2011, the average time it took to complete an environmental impact statement on a highway project was over eight years, compared with two years just after the law was passed.
The costs of such delays are extremely difficult to quantify, but critics suggest trillions of dollars of lost economic activity. In 2011, the U.S. Chamber of Commerce, the largest business lobby in the country, reviewed “351 proposed solar, wind, wave, bio-fuel, coal, gas, nuclear and energy transmission projects” — all of which had been delayed or canceled due to what the chamber called “regulatory barriers, including inefficient review processes and the attendant lawsuits and threats of legal action.”
While noting that not all of the proposed projects would — or even should — be ultimately approved, the chamber put their collective economic value, if operated for 20 years, at $3.4 trillion in gross domestic product. This included “$1.4 trillion in employment earnings … and an additional one million or more jobs per year,” the chamber noted.
This wouldn’t necessarily come as a surprise to Dennis Duffy, an attorney and Cape Wind’s vice president, who has testified before Congress on the need to streamline the environmental review process — which for the Nantucket project involved numerous agencies often working independently, on their own timelines, including the Environmental Protection Agency, the U.S. Fish & Wildlife Service, the Coast Guard, the Army Corps of Engineers, the National Marine Fisheries Service and myriad others at both the state and federal levels.
“Part of the problem with NEPA is, when it started, it would be unusual for an environmental impact statement to exceed 100 pages,” Duffy said. “It’s just expanded gradually over time. The standards are not — there’s no black-and-white line as to how much work has to be done under NEPA. It’s very subjective and case specific, site specific.”
The final EIS for the Cape Wind project is 800 pages long.
The process is also wide open to litigious opponents who, Duffy says, are free to bring court challenges to decisions made by regulators at nearly every level of the process. “I think they made a decision that they thought if they stretch the NEPA process out and made it as costly and long as possible, that we financially would collapse and go away,” Duffy said of Cape Wind’s opponents. “But we didn’t go away. Now, the NEPA process was painful to go through, but we now have the favorable position of defending the adequacy of an EIS which is one of the most complete and extensive anyone has ever seen.”
Even so, few would argue that 12 years and counting is an efficient or economical time frame to get a project off the ground. A recent analysis by the Atlanta-based international law firm King & Spalding noted that an average of 126 new NEPA challenges were filed each year between 2001 and 2009:
Furthermore, an average of 24 Temporary Restraining Orders (TRO) and preliminary and permanent injunctions halting projects were issued each year between 2001 and 2009. In general, NEPA plaintiffs succeed in winning NEPA cases more often than pro-development interests. And NEPA plaintiffs have six years after a “final agency action” to initiate litigation challenging the project, per the Administrative Procedure Act’s statute of limitations. In one instance, the near-certainty that a project’s permits would eventually be litigated under NEPA motivated Shell Oil Company to file a lawsuit challenging its own project in order to avoid waiting six years for adversaries to file suit before the statute of limitations expired.
Several proposals for streamlining NEPA review have been floated in Congress over the years, and the 2012 transportation bill included some provisions that would do just that. But not everyone agrees that NEPA itself, as written, is problematic.
Sue Reid, an environmental attorney and director of the Conservation Law Foundation’s Massachusetts office, argues that the 1970 law has proved a vital tool in curbing abuses by project developers who, prior to its passage, ran roughshod over environmental interests with little scrutiny.
“Obviously I work for a shop that relies on litigation as one of many tools in our toolbox, in terms of confronting bad projects that shouldn’t have passed, or shouldn’t pass environmental and regulatory reviews,” Reid said. “I would say that I wouldn’t want to change the rules based on abuses of existing systems, and I think that’s what you’d be talking about potentially here. All of these environmental groups like CLF and the Natural Resources Defense Council and the Sierra Club and Greenpeace and all these groups that engage in litigation — not even periodically but regularly — do so relatively surgically, and we look for when there’s a problem with a proposed development project or a regulatory process. We focus on the biggest issues and target those and go after them, when necessary, with litigation.”
This is not the same, Reid suggests, as the tack deployed by opponents of Cape Wind. “That is, to sue in connection with basically every single regulatory approval, whether it’s related to the contracts or the environmental reviews or the permitting — every single turn has been challenged,” Reid said. “I think that’s a whole different animal, and again, I wouldn’t want to necessarily use the exception to the rule to frame how you should change the rules.”
Kit Kennedy, an NRDC attorney who specializes in renewable energy policy, and who has written about the long-running Cape Wind tussle, agrees.
“The thorough and careful environmental review helped to outline the environmental benefits of the project, identify where mitigation measures were called for and allowed for full participation and input by the public,” Kennedy said. “It gave us confidence that once the environmental review was done, we had all the information on the project’s benefits and impacts that we needed to support the project.
“The delays in moving forward with Cape Wind,” she added, “stem not from NEPA but largely from the well-funded opposition of a single group, the Alliance to Protect Nantucket Sound, whose sole purpose — despite its name — is to try to stop Cape Wind.”
PROTECTING THE SOUND
Audra Parker is the chief executive of that alliance — also known as Save Our Sound — an umbrella organization based in Hyannis, Mass., that has spearheaded the fight against Cape Wind for most of the last dozen years. In a small, second-floor office next door to Tommy Doyle’s Irish Pub and Restaurant, Parker pores over a map and explains how the virtues that make Horseshoe Shoal an attractive location to erect wind turbines are, at the same time, characteristics that are highly prized — left just as they are — by other commercial and recreational interests.
“The developer basically went and said, ‘Okay, from a technical basis, where’s a really good spot to build?'” Parker said. “‘Well, this is a good spot because it’s close to shore, so my transmission cables won’t be so long, right? It’s protected, so it’s easier to maintain and operate — my extreme storm wave heights are low, because it’s almost like a harbor — and the wind speed’s really high. So technically, it’s a great place for me — a profit-maximizing location.
“On the other hand, those very same things make it really conflicted, because you’ve got a very lucrative fishing industry right here,” she continued. “You’ve got a lot of traffic because it’s a seasonal community. You’ve got a lot of recreational boating going on here, you’ve got ferry lines going here, you’ve got air traffic — you just have a huge amount of conflict. And at the same time, it’s a very fragile habitat. You’ve got endangered species like right whales coming in here, you’ve got endangered birds like piping plovers and roseate terns. So it’s sort of the same thing that made it very attractive to the developer makes it very conflicted for the public, which is why there has been such a fight.”
More recently, Parker and other opponents have raised objections to the power-purchase deals brokered by Cape Wind’s developers with regional electricity transmission companies. These include contracts with National Grid and NStar to buy three-quarters of Cape Wind’s output (50 percent to the former and 27.5 percent to the latter) over the first 15 years of the farm’s operation. The cost of that power — significantly higher than the spot-price for electricity generated by more polluting sources — will pose a significant hit to ratepayers that simply isn’t worth it, Parker says.
And while supporters of the project chastise opponents for standing in the way of renewable power development for purely selfish ends, Parker argues that the open vistas of Nantucket Sound are as worthy of preservation as other national landmarks. If we would blanch at placing a large-scale industrial facility in the heart of the Grand Canyon, such reasoning goes, why would we entertain doing it smack in the middle of an arguably historic body of water bounded by tranquil seaside towns?
“In the West they have these huge areas of land. They’ve got these huge national parks like Yellowstone, and there just aren’t areas like that here. This is what we have here,” Parker said. “Why would you destroy that, you know?”
This and other arguments — from destruction of property values, ruination of a lucrative tourist trade and desecration of sacred Native American vistas — have gained opponents purchase in the courts at various turns.
And while much of the resistance has emanated from middle- and working-class folks at the rim of the sound, there is little question that the effort to derail Cape Wind has also been helped — and prolonged — by deep-pocketed critics in the tonier compounds of Martha’s Vineyard and Nantucket, though in some cases, that opposition has foundered. The late Walter Cronkite, the esteemed news anchor and property owner on Martha’s Vineyard, for example, was an early opponent of the project, appearing in local television ads funded by critics of Cape Wind before reconsidering his stance and ultimately supporting it before his death.
Recently appointed Secretary of State and former Democratic senator from Massachusetts John Kerry — a chief architect of climate legislation on Capitol Hill and a staunch supporter of clean energy — questioned the project for years, arguing in 2007, for example, that “You can’t just have someone plunk something down wherever the hell they want.”
Kerry eventually lent his support to the project as well, but his early reticence echoed the opposition of the Kennedy family, whose compound in Hyannisport, just down the road from Craigville Beach, looks directly out onto Horseshoe Shoal.
The late Sen. Ted Kennedy, whose bona fides as a Democrat and supporter of environmental issues was unrivaled, was nonetheless an entrenched opponent of the Cape Wind proposal. His nephew, Robert F. Kennedy Jr. — himself an environmental attorney and activist and founder of the watershed protection group Waterkeeper Alliance — has argued relentlessly against the project, including in prominent op-eds in The New York Times and, more recently, The Wall Street Journal.
But the chief underwriter of the campaign to stop Cape Wind, which includes major funding for Parker’s alliance, is William Koch, scion of the founders of the oil refining giant Koch Industries, chairman of the gas and coal supplier Oxbow Corp. — and owner of a sizable estate in Osterville, Mass., just west of Craigville beach.
While the Alliance is largely a local group, concerned about the possible environmental, aesthetic, and economic impacts of the wind farm, their efforts have been sustained almost entirely by Mr. Koch and his gas and coal conglomerate, Oxbow Corp. In a 2006 interview with Forbes, Mr. Koch admitted spending $1.5 million on the Alliance. The group’s 2011 annual report form filed in Massachusetts includes Mr. Koch as a co-chairman for the organization — despite his Palm Beach, Florida, address, thousands of miles from Nantucket Sound. The Alliance’s 2009 … IRS form indicates that Mr. Koch also paid most of president Audra Parker’s $147,499 salary.
Koch has made no mystery of his opposition to Cape Wind, and Parker is unfazed when asked about his involvement in the alliance, describing it as a red herring that distracts from what she says are thousands of grassroots supporters.
“Bill Koch is our biggest donor, over time he’s been our biggest donor,” Parker conceded, adding that he accounts for about 20 percent of the group’s operating budget, with smaller donors representing the rest. “Yes, our largest donors are funding the bulk of it, yes — but that’s typical. Obviously you’re going to have a few $100,000 donors and a lot of small donors, so you just do the math. But it’s pretty typical of a nonprofit,” she said. “Koch has property here, so he cares about the area just like everyone else. It has nothing to do with oil and gas interests. I really don’t think his business model is threatened by Cape Wind.”
To further demonstrate her point, Parker digs into a file folder and produces letters from a variety of supporters and small donors to the alliance. “I’m elderly and I have a limited income, but I gladly offer this small amount because I do not want to leave this earth with the Sound desecrated,” reads one letter, which accompanies a $15 donation. A $25 donor writes: “You will never know how much we appreciate all that Save Our Sound has done to protect our sound. Thank you, thank you, thank you.”
Parker, who spent summers on the cape growing up and who now lives in the area full time, begins reading aloud another letter, sent in 2011, after Interior Secretary Ken Salazar issued a final federal approval of the project.
“Thank you so much for all you folks are doing to save one of the most beautiful pieces of water in the world,” she begins. “When the news came down the other day, I was devastated. Frankly, I took it much harder than expected. It is unfathomable to me that a group of investors can simply swoop in and lay claim to a national treasure. This is the greatest theft in Massachusetts history. Cape Wind has devastated not only the…”
And then Parker tears up and stops.
“I can’t even read this,” she said. “It always gets to me.”
The truth behind the finer points of the long-running Cape Wind dispute are, as one might expect, a matter of vigorous debate. For every poll or study commissioned or endorsed by the alliance that shows Massachusetts residents oppose the project, that property values will drop, or that electricity rates will skyrocket, supporters can point to countervailing analyses that show quite the opposite.
A 2010 study of regional electricity markets, for example, suggested that Cape Wind would actually work to lower wholesale electricity prices in New England over time.
The Obama administration also has made it a high priority to encourage the diversification of the nation’s energy portfolio through generous subsidies for the burgeoning clean energy sector, and Massachusetts, like many states, now requires local utilities to obtain a certain percentage of their electricity from renewable sources — which means that new clean energy facilities must, at some point, be built.
And while it is virtually certain that the turbines will have implications for local bird life, fish populations, boat captains and plane pilots, thousands of pages of state and federal agency analysis, judicial review and subsequent re-analysis have suggested that, all things considered, the project’s virtues outweigh its impacts.
That has done very little to speed the permitting process or to dissuade the very real passions of Parker and her supporters.
All but one of the legal challenges that the alliance and its allied groups have thus far filed have been rejected by the courts. The one success — challenging the Federal Aviation Administration’s finding that the project would not impede air traffic — forced the agency to revisit its review in 2011. On Aug. 15, 2012, the FAA once again came to the same conclusion:
“The proposed construction of the 130 wind turbines, individually and as a group, has no effect on aeronautical operations. Therefore, the FAA concludes that the project, if constructed as proposed, poses no hazard to air navigation.”
A challenge to that finding was filed seven days later and is now pending.
“This is personal for me, too, but it’s not — what do we have to gain here?” Parker said. “We’re just trying to protect the community and the people that live here.
“I’ve dedicated a decade of my life for this fight,” she added. “People believe in this.”
Asked if she and her partners could imagine a moment when they might throw in the towel on this fight, Parker doesn’t hesitate.
“Yes,” she replied. “When we win.”
IMPROVING THE PROCESS
Department of Energy data on the potential of offshore wind in the U.S. is impressive. It suggests that as much as 4 million megawatts of electricity could be harnessed from the steady breezes blowing on state and federal waters along the coasts of the U.S., as well as in the Great Lakes. That’s roughly four times the combined generating capacity of all existing electric power plants in the nation today, according to DOE — and the Obama administration has made it a mission to finally get the industry moving.
Outgoing Secretary of Interior Ken Salazar looks out over Nantucket Sound. Salazar issued federal approval of the Cape Wind project in 2010, nine years after it was first proposed. (AP Photo/Rebirth Productions)
Several commercial wind farm proposals or incentive programs — off the coasts of Maine, New Jersey, Delaware and elsewhere — have since joined Cape Wind and are now vying to be the first to become operational, but the odds that any of them will overcome the necessary hurdles during the president’s second term are hard to predict.
To help expedite matters, DOE in December announced some $168 million in funding over the next six years for seven offshore demonstration projects. And that funding came on the heels of the Department of Interior’s first-ever plans to open up some 164,000 acres along the Atlantic coast for lease sales to commercial offshore wind power developers.
The move is part of the Obama administration’s “Smart from the Start” program, launched in 2010 — not long after final federal approval for Cape Wind was issued — and is designed to speed offshore wind power development off the Atlantic Coast. “The Cape Wind lease is an historic milestone in America’s renewable energy future, but to fully harness the economic and energy benefits of our nation’s vast Atlantic wind potential we need to implement a smart permitting process that is efficient, thorough, and unburdened by needless red tape,” Salazar said at the time.
But that program would only help to speed up leasing for offshore wind. In most cases, projects would still need to undergo a full environmental review — and the agonizingly protracted scoping and litigation that so often comes with it.
“I was very happy to see it,” said Duffy, the attorney and vice president of the Cape Wind project, referring to the Smart from the Start program. “But it doesn’t address the conflicting positions of different agencies or the possibility of multiple agency appeals, perhaps even in different courts. It still doesn’t put a time limit on things.”
Reform advocates at Common Good have pointed to other countries with flourishing renewable energy industries, including Great Britain, Denmark and Germany, where processes for regulating and permitting clean energy projects were designed in many cases from the ground up. These so-called one-stop shop systems identify a single government agency as the designated handler of renewable project permitting, and as the sole interface between developers and the government. Strict timelines are in place for reviewing the impacts and considering alternatives, and an ample but clearly defined window for public input and court challenges keeps proposals from becoming bogged down in endless litigation.
Matthew Brown, the Common Good attorney, also notes that in many cases a dedicated administrative court with specialized knowledge of renewable project technology and permitting issues is in place to handle disputes.
“We already have a variety of specialized courts, like bankruptcy court and international trade court,” Brown said. “New York City diamond dealers are signed into an informal court system that deals with commercial disputes between diamond dealers. In other countries, challenges to infrastructure projects — these would not go to a court of general jurisdiction, they would go to a court that is very keyed in to the issues — and able to rule more quickly.”
Jim Maxeiner, an associate professor of law at the University of Baltimore and an associate director of the school’s Center for International and Comparative Law, suggested in an email message that a project like Cape Wind would have been permitted and built far faster in Germany. “Under the German law that prevailed before 2012, two to three years was typical time from initial application to approval, although some applications took as long as six years,” Maxeiner noted. “Ten years was unheard of — and in January of this year the law was amended to expedite approvals. I have not seen target times, but I surmise that the idea is to have resolution within one to two years.”
Philip K. Howard, the founder of Common Good and the author of several books on the need to simplify regulatory processes in the U.S., has called for a similar “infrastructure super-authority” here. Such a body, Howard recently wrote, would be “created with the mandate to approve certain new projects within one year of application — including roads, bridges, wind and solar farms, and power lines. For interstate projects, the super-authority should have the power to cut through federal, state, and local red tape. Judicial review should be limited to jurisdictional issues, and should be resolved in the timeframe of a preliminary injunction — no more than 60 days.”
Despite protestations from a variety of environmental groups, a bill aimed at significantly speeding up the impact review for proposed transportation projects was signed into law in the U.S. last year. Among other things, it calls for smaller projects receiving less than $5 million in federal funds to be excluded from environmental review all together.
Germany’s first offshore wind farm, known as Baltic 1 and located near the coastal town of Zingst. Regulatory reform advocates say Germany and other nations have more streamlined processes for permitting projects. (Photo by Joern Pollex/Getty Images)
But even those calling for infrastructure permitting reform often say the problem isn’t necessarily environmental law as written, but the way in which it is implemented. “Proposals for environmental streamlining originating in Congress often overlook opportunities to overhaul policies and procedures within the current legal framework for environmental review,” said Petra Todorovich, director of RPA’s America 2050 program, in a statement accompanying the “Getting Infrastructure Going” report. “Contrary to current thinking, our study found that more federal involvement, not less, tends to speed up environmental reviews of major projects.”
Whatever the solution, it will need to be found quickly if the nation hopes to address the growing climate crisis in a serious way. In its 2011 climate assessment, the National Research Council stated that the nation must cut greenhouse emissions by 80 percent by 2050 merely to stabilize the concentration of heat-trapping gases in the atmosphere. The electricity sector accounts for a third of such emissions, and most experts believe the necessary reductions simply cannot be achieved without a swift transition to cleaner sources of power.
“Our existing environmental laws and regulatory processes no longer achieve their underlying goals of long-term ecosystem conservation,” wrote Thaler, the law professor at the University of Maine. “To the contrary, these laws and regulations are supporting a system with increasing greenhouse gas emissions that is actually costing trillions of dollars.”
Now that the permits have been obtained and at least two-thirds of the wind farm’s output has been purchased under contract, Jim Gordon and his partners are busy seeking financing for Cape Wind. They won’t comment on how much it will cost in the end, though estimates typically run between $1 billion and $2 billion. Gordon suggested in a recent phone call that he anticipated having turbines in the water by 2015.
That might still be optimistic. Grid managers have suggested that it could take longer, and in any case, more legal action remains a possibility.
“If I knew from the very beginning that it would take 12 years and cost as much as it did, I would have had to think very long and hard about accepting that challenge,” Gordon said. “I’ve spent 36 years of my life developing energy projects, and our mission has been trying to improve the efficiency and improve the environmental attributes of these types of projects. I was really devoted to trying to contribute to helping transition to a cleaner energy future.
“I am where I am. I can’t look back,” he added. “I don’t know what I would have said 12 years ago because I’m a different person. I’m older. In some ways I’m wiser; in some ways I’m not wiser. At the end of the day, I think this is a very important project.”