Judge Rules Against Opponents of Cape Wind

June 24, 2008

A Barnstable Superior Court judge last Friday dismissed four of five counts in a lawsuit that challenges the state's environmental review of the Cape Wind project -- a proposal to build 130 wind turbines in Nantucket Sound.

The action voided the bulk of the lawsuit filed last August by the town of Barnstable, the Alliance to Protect Nantucket Sound, a group opposed to Cape Wind, and ten concerned taxpayers.

The lawsuit was filed after the state's Executive Office of Energy and Environmental Affairs approved Cape Wind's environmental impact report, a significant decision that opened the door for other state agencies to issue permits for the project. The lawsuit claimed that the state's review of the project was flawed and did not adequately address potential impacts.

Audra Parker, the director of strategic planning for the Alliance to Protect Nantucket Sound, said it appears that the judge considered portions of the lawsuit premature. Opponents, she said, needed to wait until after an actual permit was issued before challenging the state in court.

"I think it is more of an issue of the timing of the legal challenge than substance," Parker said. "But we are consulting our lawyers so we will have a better answer for you in the future."

In a press release, Cape Wind president Jim Gordon said he was pleased with the ruling.

"The court rejected the opponents' primary argument and agreed that Massachusetts agency review was proper," Gordon said.

Judge Robert Kane did not dismiss the suit entirely, keeping alive a portion of the complaint that alleges the project would violate the endangered species act because an administrative appeal is still underway with the Department of Fish and Wildlife.

The US Minerals Management Service, the lead federal agency charged with approving the project in federal waters, is presently preparing a final environmental impact statement about the project. That document is due to be released by the end of the year, an MMS spokesperson said.

Issues related to Cape Wind also are being reviewed by the state's Energy Facilities Siting Board, which may issue rulings on pending motions by the end of the month, according to a spokesperson for the board.