Fishing, Fowling, Navigation and Wind Energy: SJC Approves Cape Wind Siting Process

The Cape Wind project cleared another important hurdle yesterday with a 4-2 ruling by the Massachusetts Supreme Judicial Court, holding that the state Energy Facilities Siting Board (EFSB) can authorize local construction permits for the project’s transmission lines. The decision in Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Board is particularly significant because it means that the renewable energy project has all of the state and local permits it needs to move forward.

In late 2007, after the Cape Cod Commission denied its proposed Development of Regional Impact (DRI), Cape Wind applied to the EFSB for a “certificate of environmental impact and public interest” – a composite of all of the individual state and local permits required for the construction of the 18.4 miles of transmission lines that will connect the wind farm to the regional power grid. This suit, brought by the Cape Cod Commission, the town of Barnstable, and the Alliance to Protect Nantucket Sound, challenged the EFSB’s May 2009 decision granting the certificate to Cape Wind. In short, the SJC held that the EFSB had the authority to grant the certificate and upheld the Board’s substantive findings, which balance the environmental impacts of the transmission lines with the need for the project.

A key aspect of the decision is the SJC’s rejection of the petitioners’ arguments that the EFSB should have reviewed “in-State” impacts of the wind farm, which is permitted exclusively by Federal authorities, rather than focusing solely on the impacts of the transmission lines, which require state and local permits. Essentially, if the project is built in federal waters, the EFSB can trust the feds to get it right, the majority said.

Chief Justice Marshall (joined by Justice Spina) dissented, issuing a stern warning:

The stakes are high. As we have recently seen in the Gulf of Mexico, the failure to take into account in-State consequences of federally-authorized energy projects in federal waters can have catastrophic effects on state tidelands and coastal areas, and all who depend on them.

The decision also includes a lively debate about the implications of the public trust doctrine and the Chapter 91 licensing scheme in this context.

Writing for the majority, Justice Botsford concluded that the statute which authorizes the EFSB to issue certificates of environmental impact and public interest provides

an express legislative directive to the siting board to stand in the shoes of any and all State and local agencies with permitting authority over a proposed “facility”– that is, a directive to assume all the powers and obligations of such an agency with respect to the decision whether to grant the authorization that is within the agency’s jurisdiction, with regulatory enforcement thereafter returned to that agency.

Again, Chief Justice Marshall disagreed. Reflecting on the SJC’s recent decisions in Moot v. Department of Envtl. Protection, (2007) and Arno v. Commonwealth, (2010), she reasoned that even in this case – which has to do with the administration rather than the relinquishment of public trust rights – the Legislature must act expressly. Here, Justice Marshall concluded,

the siting board has purported to act as the protector of the public’s long-standing rights under the public trust doctrine without the necessary express legislative authority to do so.

Of course, underlying this debate is the important policy question of which picture of Nantucket Sound is more protective of the public trust? The state, and now the SJC, have chosen.



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