Pioneering Cape Wind project announces it is now ‘litigation-free’

Source: Elizabeth Harball, E&E reporter • Posted: Wednesday, May 7, 2014

The often-attacked Cape Wind offshore wind farm in Massachusetts’ Nantucket Sound scored another win in federal court Friday as a federal judge dismissed a lawsuit contending the state acted unconstitutionally by helping the project get a contract to sell electricity.

“We are, at the moment, litigation-free,” said Cape Wind spokesman Mark Rodgers — a situation that the private developers have not experienced in “many, many years,” he added.The lawsuit was filed in January by the Alliance to Protect Nantucket Sound, a Hyannis, Mass.-based group that has for over a decade led the opposition to the project, in addition to the town of Barnstable, Mass., and several local businesses and individuals.

The plaintiffs contended that the state of Massachusetts violated the U.S. Constitution by pressuring utility NSTAR into an above-market electricity contract with Cape Wind, a move they argued prevented out-of-state generation facilities from competing with Cape Wind and “intruded on [the Federal Energy Regulatory Commission]‘s exclusive jurisdiction to regulate wholesale electric energy prices.”

Describing Cape Wind’s opposition as an “obdurate band of aggrieved residents of Cape Cod and the Islands” who have “for present purposes … doffed their green garb and draped themselves in the banner of free-market economics,” Judge Richard Stearns of the U.S. District Court in Boston said the plaintiffs could not sue the state based on the Constitution’s 11th Amendment, meaning that their case did not fall under the narrow exception to the rule that generally bars lawsuits against states.

However, Stearns also wrote that “the result would be no different were the court to rule on the substance of the claims.”

In a final footnote, Stearns added that while “in entering this decision, the court takes no position on the underlying merits of siting a wind farm in Nantucket Sound or the wisdom of a state policy that encourages utilities to purchase renewable forms of energy at above-market prices … there comes a point at which the right to litigate can become a vexatious abuse of the democratic process.”

The decision will allow the proposed 130-turbine, 468-megawatt project to move forward as planned, Rodgers said.

“It keeps us on our timetable to secure financing, to complete financing by the end of this year and to move into the construction phase,” he said.

Massachusetts Gov. Deval Patrick (D) lauded the decision in a Saturday tweet, calling it “another significant step forward for the Cape Wind project.”

The Alliance to Protect Nantucket Sound announced it plans on filing an appeal.

In its statement responding to the decision, the alliance said that “the ruling is based on a legal technicality that does not address our claim that state regulators acted illegally” and repeated its position that the NSTAR-Cape Wind contract “puts an unfair finan