Cape Wind foes file lawsuit 

Opponents of the Cape Wind proposal filed a lawsuit in Barnstable Superior Court yesterday seeking to overturn a key decision in favor of the project by the state’s top environmental official.

The complaint alleges that Ian Bowles, the state secretary of environmental affairs, abdicated his responsibility to protect Cape Cod’s waters in March when he backed an environmental impact report on the proposed 130 wind turbines in Nantucket Sound.

John W. Spillane, a lawyer representing the group of boaters and property owners who filed the lawsuit, said he hoped the complaint would stall state and local permitting for the project and eventually kill it. “I’m inclined to think this suit will put a chill in the process,” he said.

But a spokesman for Cape Wind Associates, the Boston-based company behind the proposal, said he did not expect the lawsuit to delay permits.

And officials with the state Executive Office of Environmental Affairs said the complaint has little merit. “Secretary Bowles remains confident that his decision will be upheld by the court,” said Robert Keough, a spokesman for the Executive Office of Environmental Affairs.

The lawsuit stems from Bowles’ acceptance of Cape Wind Associates’ “final environmental impact report,” which found the project would have minimal effects on the fishing industry, endangered birds and views of the sound.

Bowles’ decision made the report, prepared by Cape Wind’s consultants in accordance with Massachusetts regulations, the go-to document for several state and local agencies considering permits for the project.

In his decision, Bowles wrote he had little power to quibble with Cape Wind’s report since the turbines would be located in federal waters.

The secretary said he could only focus on the project’s proposed transmission cable, which would run through state waters to state land.

That interpretation drew immediate rebukes from opponents of the project, who argued the turbines’ affects on fish and navigation would ripple into state waters.

And that same criticism featured prominently in the lawsuit filed yesterday in Barnstable by a collective of boaters and others calling themselves the “Ten Taxpayer Citizens Group,” as well as a group of property owners in West Yarmouth near the proposed landfall for the transmission cable.

The “Ten Taxpayers” group also was behind a legal challenge to a Cape Wind tower that collected meteorological and oceanographic data in Nantucket Sound.

The earlier lawsuit, like the complaint filed yesterday, urged the state to take a broad view of its authority over Nantucket Sound. The courts rejected that view.

Spillane said the courts’ decisions in the data-tower case applies only to the data tower. But Dennis Duffy, a lawyer who is Cape Wind’s vice president of regulatory affairs, said any new attempt to broaden the state’s jurisdiction would likely fail in light of the data tower case. “The federal courts have already definitively resolved the jurisdictional question and we’re confident Secretary Bowles’ decision was correct,” he said.

The new lawsuit does not rest on jurisdictional issues alone. The plaintiffs allege that Bowles should have demanded more information from Cape Wind before signing off on the environmental impact report. They also accuse him of ignoring the disruptive effects of the proposed transmission cable on the ocean floor.

It is unclear, though, whether the court will even hear the lawsuit. David Rosenzweig, an attorney for Cape Wind, said the complaint is premature because a state agency must actually issue a permit before opponents can challenge the secretary’s endorsement of the environmental impact report.

But whenever they are heard, legal challenges to Bowles decision seem inevitable. The town of Barnstable and the Alliance to Protect Nantucket Sound, the leading Cape Wind opposition group, have both filed notices of intent to sue.

Charles Vinick, president and chief executive officer of the Alliance, said yesterday that there are “a number of appropriate challenges” the group could make to the Bowles’ decision.

By David Scharfenberg

Staff Writer

Cape Cod Times

26 May 2007

capecodonline.com