Friday, October 28, 2011

Appeals court rejects Cape Wind approval

By Eric Convey, Boston Business Journal

(Updated at 1:05 pm with additional information)

A federal appeals court today overturned the Federal Aviation Administration‘s approval of the Cape Wind project, ordering the agency to reconsider whether 130 440-foot-tall turbines in Nantucket Sound would put air travelers in jeopardy.

On several legal matters, the Appeals Court for the District of Columbia sided with the town of Barnstable and the Alliance to Protect Nantucket Sound —and against the FAA and Cape Wind Associates LLC, which wants to build the turbines.

The plaintiffs had argued that the FAA violated its own rule-making process in granting what are called “No Hazard” approvals for each of the proposed turbines.

The FAA countered that the petitioners lacked standing.

The court sided with the plaintiffs on both matters. The plaintiffs did have standing to bring the suit, the court ruled, and the court found that the FAA “misread its own regulations.” 

The ruling focused in part on whether the FAA ignored its own regulations governing how close to structures planes should fly. In the case of Nantucket Sound, the court noted, flying below cloud cover during bad weather is of special significance.

“The FAA may ultimately find the risk of these dangers to be modest,” the court wrote, “but we can not meaningfully review any such prediction because the FAA cut the process short in reliance on a misreading of its handbook and thus, as far as we can tell, never calculated the risk in the first place.”

Referring to another point in the case, the appeals court wrote:

“In a curious display of agency modesty, the FAA dismisses its influence with Interior. It emphasizes that Interior reached its decision only after years of deliberation that involved consultation with over a dozen agencies, and that Interior decided to move forward with the project only “[a]fter careful review of the project need, the various alternatives considered, the concerns expressed through years of public comment, as well as the many agency consultations that were conducted and the potential impact to Nantucket Sound and environs therein.”

In essence, the FAA seemed to downplay the significance of its role in the approval process.

The appeals court judges wrote: “The evidence seems to us to show that Interior would take an FAA finding of hazard very, very seriously.”

The Department of the Interior — referred to by the court as “Interior” — has a key role in the Cape Wind approval process.

Elsewhere in the decision, the appeals court judges wrote: “While of course the wind farm may be one of those projects with such overwhelming policy benefits (and political support) as to trump all other considerations, even as they relate to safety, the record expresses no such proposition.”

Cape Wind spokesman Mark Rodgers said in a prepared statement: “The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation.

“The essence of today’s court ruling is that the FAA needs to better explain its Determination of No Hazard. We are confident that after the FAA has done this that their decision will stand and we do not foresee any impact on the project’s schedule in moving forward.”