Judge rules in favor of Cape Wind plans

By Patrick Cassidy
pcassidy@capecodonline.com
May 03, 2014 9:12 AM

BOSTON – A federal judge has ruled in favor of Cape Wind in the latest lawsuit challenging the 130-turbine offshore wind energy project planned for Nantucket Sound.
Judge Richard Stearns on Friday granted several motions to dismiss a lawsuit filed by the project’s opponents, including the town of Barnstable, the Alliance to Protect Nantucket Sound and various businesses and individuals.
The lawsuit filed in January claims that the approval by state regulators of an above-market contract to sell power from the project to NStar, which delivers power to Cape Cod, Martha’s Vineyard and other parts of the state, violated two clauses of the U.S. Constitution: the Commerce Clause and the Supremacy Clause. The plaintiffs argued that NStar was forced to sign the contract with Cape Wind as a condition for the state approving a merger between the utility and Northeast Utilities and that the state infringed on the Federal Energy Regulatory Commission’s jurisdiction over setting wholesale electricity rates.
“Both sides in the dispute claim the mantle of environmentalism, although for present purposes, plaintiffs have doffed their green garb and draped themselves in the banner of free-market economics,” Stearns wrote in the 28-page ruling, which lays out a succinct outline of the project’s long legal history.
In the ruling Stearns found that the plaintiffs, who had sued officials at the state Department of Public Utilities and the state Department of Energy Resources, were barred from doing so under the 11th Amendment of the Constitution which restricts lawsuits against a soverign state for past actions.
In addition, he found that, even if the lawsuit had passed the 11th Amendment test, it would still have lost on the merits.
“The allegation that DPU dictated that NSTAR procure power from Cape Wind at a specified price is misleading and ultimately untrue,” Stearns wrote in a footnote.
In a final footnote, Stearns resorted to some of the strongest language to date regarding the role of the courts in the 13-year fight over Cape Wind.
“If instead of a judicial robe, I were to wear the hat of John Muir or Milton Friedman, I might well conclude that the Cape Wind project should have been built elsewhere (or not built at all), or that the NStar-Cape Wind contract should never have been approved,” Stearns wrote. “But in this case, the Governor, the Legislature, the relevant public agencies, and numerous courts have reviewed and approved the project and the PPA with NStar and have done so according to and within the confines of the law. There comes a point at which the right to litigate can become a vexatious abuse of the democratic process. For that reason, I have dealt with this matter as expeditiously as possible.”
The case is the latest in a long line of legal challenges to the 130-turbine wind farm in Nantucket Sound.
Alliance president Audra Parker said after a hearing this week on the motions to dismiss that her organization is awaiting final action on two outstanding matters in another federal lawsuit and considering future appeals.
In a statement released this morning Cape Wind president Jim Gordon said the decision “provides further momentum for Cape Wind to secure project financing and produce the energy, economic and environmental benefits to the region and the United States by launching a domestic offshore wind industry.”
The project, which is expected to cost at least $2.6 billion, has made headway recently in securing financing.
In March, Cape Wind officials announced that, with The Bank of Tokyo-Mitsubishi UFJ Ltd., they had added Natixis and Rabobank as “lead arrangers” for the project. The banks expect to provide more than $400 million in debt themselves in addition to $900 million in potential financing from other sources.
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