Court rejects challenge to Cape Wind project
The U.S. Court of Appeals for the District of Columbia Circuit upheld the Federal Aviation Administration finding that the proposed 130-turbine farm would not pose a risk to aeronautical navigation over Nantucket Sound.
The case is one of several challenging the Cape Wind project, which has received a permit from the Interior Department but has yet to get off the ground due to financial problems.
Today’s ruling is the successor to a 2011 D.C. Circuit ruling that threw out FAA’s original 2009 determination that the turbines posed “no hazard” to aircraft or navigation facilities. In that case, the D.C. Circuit ruled that FAA did not provide sufficient analysis to justify its conclusion and remanded the issue back to the agency (E&ENews PM, Oct. 28, 2011)
FAA issued similar determinations in August 2012, and the Barnstable, Mass., residents filed another lawsuit.
But this time a unanimous three-judge D.C. Circuit panel found FAA had backed up its findings.
Judge Judith Rogers, a Democratic appointee, wrote that since the first ruling, the circumstances surrounding the radars used around the proposed farm have changed. Specifically, FAA upgraded radar and a beacon at Otis Air National Guard Base in Massachusetts and ran several tests to ensure the turbines would not pose a problem.
The agency also solicited public comment and contracted an outside expert to conduct a study. Finally, FAA required the project to place $15 million in an escrow account for two years to acquire and install yet another radar system if the current one proved ineffective.
All of this was enough to convince the three-judge panel that FAA met its obligations, Rogers wrote.
The project still faces many lawsuits, including one filed recently that claims state regulators did not have the right to broker an agreement with the utility NStar to buy power from the proposed farm (Greenwire, Jan. 22).