Cape Wind Survives a Legal Challenge to FAA Approval: Is the Opposition Strategy to Play Whac-A-Mole?

On Wednesday, the Court of Appeals rejected a challenge by the Town of Barnstable to the FAA’s “no hazard” determination for Cape Wind.  As background, the same court had determined in 2010 that a prior no hazard determination by the FAA had not been adequately supported.  This time, the FAA did better, in part because the facts on the ground were better.  One significant concern in 2010 had been the potential impact of the turbines on the radar system at Otis Airfield.  However, that concern was largely addressed in the interim by the addition of a digital processor to the Otis radar – a processor specifically intended to avoid interference from the turbines.

The decision was at some level an example of nuts and bolts deference to agency decisionmaking, but there were a few nuggets for administrative law geeks.

  • This time around, the FAA clearly did a better job at responding to negative comments.  Importantly, the Court made clear that the FAA need not respond to every single adverse comment, but only to “state the main reasons for its decision and indicate that it has considered the most important objections.”
  • The Court relied both on Chevron deference to the FAA’s interpretation of the governing statute and Auer deference to the FAA’s determination of its own regulations.  As I mentioned last year, some members of the Supreme Court have expressed a willingness to revisit Auer, but it’s still good law now and an important arrow in the agency quiver when defending administrative decisions.
  • The Court stated that NEPA does not provide an avenue for review of FAA decisions.

Because the FAA “simply lacks the power to act on whatever information might be contained in the [environmental impact statement (“EIS”)],” id. at 768, NEPA does not apply to its no hazard determinations.

It is worth noting that the same day the decision was issued, Greenwire reported that opponents to Cape Wind, including the plaintiff here, the Town of Barnstable, have filed another law suit, this time arguing that Massachusetts infringed on FERC authority in approving the power purchase agreement between Cape Wind and NSTAR.

The opposition strategy does bear an eerie resemblance to Whac-A-Mole™


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