Cape Wind appeals state board’s denial of transmission approvals 

Cape Wind, the offshore wind project planned for Nantucket Sound, has not given up despite some serious setbacks, and this week appealed to the Supreme Judicial Court a state board decision denying the project’s request for extensions of critical subsea and on-shore transmission facility approvals.

In an appeal dated Tuesday, Charles Dougherty of the Boston-based Cape Wind Associates asked the state’s highest court to reverse the April 6 decision of the Energy Facilities Siting Board and remand the case to the board to enter a final decision granting the transmission-related requests.

Cape Wind claims that the siting board exceeded its authority and asserts the decision to deny a two-year extension of transmission permits “is based on errors of law, is made upon unlawful procedures, is unsupported by substantial evidence and lacks requisite subsidiary findings and is arbitrary and capricious, an abuse of discretion . . . ”

The board’s prior approvals authorized in-state portions of Cape Wind’s proposed transmission lines that would connect with the wind farm located in federal waters. In the appeal, Cape Wind asserts that the siting board interfered with “the exercise of the exclusive federal authority of the United States Bureau of Offshore Energy Management” regarding a project “located in federal waters outside of the boundaries and regulatory jurisdiction of the Commonwealth.”

In April 2010, former Interior Secretary Ken Salazar approved the 130-turbine wind farm in Nantucket Sound, calling it “the final decision of the United States of America” and saying he was “very confident” the long-awaited verdict would withstand opposition. Former Gov. Deval Patrick joined Salazar at the State House for that announcement and said at the time that he expected construction to begin “within a year.”
Project supporters hailed the decision as a milestone in state and national renewable energy efforts, but project critics – saying Cape Wind was poorly sited and its energy too expensive for consumers – vowed legal battles to stop Cape Wind from ever being built.

On Dec. 31, 2014, National Grid and Northeast Utilities terminated their power purchase agreements with Cape Wind, noting the project had missed contract deadlines established in 2012 to secure financing and begin construction on Dec. 31, 2014. The development was a blow to Cape Wind’s financing and the project has largely stalled since then, with public officials, including Patrick, subsequently calling into question whether Cape Wind would ever be built and noting the steady stream of legal challenges the project has faced from its opponents, including the Alliance to Protect Nantucket Sound.

“It shows really that Cape Wind is not giving up,” alliance executive director Audra Parker told the News Service Thursday, adding that she has hoped for 14 years that project official would give up.

In the board’s April 6 decision, siting board presiding officer James Buckley wrote that evidence presented by Cape Wind alleging that the background conditions relative to the review of the project have not changed was “unpersuasive.”

“While Cape Wind insists that May 1, 2017 remains a reasonable extension period, it cannot provide any project schedule that it considers reliable,” Buckley wrote. He added that the “lack of progress, and indeed regression” on the project over the past year was “instructive.”
More than 12 years have passed since the record closed on the board’s original approval of project requests in 2005, he wrote, and “at this time, Cape Wind needs a lengthy, almost open-ended extension period.”

“At some point, such as where the Siting Board now stands with respect to the Project, the validity of record used in that examination becomes unreliable and untenable with the prolonged passage of time,” Buckley wrote. “In such extreme circumstances, as in this proceeding, extensions of prior approvals must cease and a project proponent must start the process anew for a project to merit Siting Board approval.”

During the proceedings, Cape Wind told the siting board it could not begin construction by the previous May 1, 2015 deadline because of its inability to secure financing for the transmission line and wind farm. Cape Wind had told the board that the estimated cost of the transmission project had been reduced from $79.5 million to $63 million due to the decline in the price of copper.

Buckley wrote that regardless of appeals, Cape Wind’s financing “depends on an off-take arrangement, and pending legislation is the only option for that put forward by Cape Wind.

“Not only must that legislation be enacted, but then a bid process must be developed, conducted and won by Cape Wind. After that, Cape Wind would presumably be in a better position to secure its needed project financing, for which Cape Wind is hopeful that prior financial commitments to fund the Cape Wind Project could be restored. Following that milestone, the lead time for ordering, manufacturing and delivery of the wind turbine components would add another year before the construction of the wind farm could begin in earnest.”

During an interview last year with Jim Braude on Greater Boston, Cape Wind President Jim Gordon said the project had overcome lawsuits for 14 years but still faced two more. The project still has a lease and is permitted, said Gordon.

“There’s an energy bill going through now, which is being worked on, where there is . . . trying to get a diversified portfolio of renewable energy and a carve-out for offshore wind and that’s why you see a number of these companies here coming in and trying to develop offshore wind farms,” Gordon said.

Bay State Wind is DONG Energy’s first US project and entails an up-to 1,000 megawatt offshore wind farm off the southern coast of Martha’s Vineyard, in an area that the federal Bureau of Ocean Energy Management has made available for lease. Water depth in the area ranges from 135 to 165 feet and the nearest land is 15 miles away. The potential energy from the project could power over 500,000 homes.

While describing Bay State Wind as at the start of a multi-year permitting process, Gordon added, “I hope they make it and I’m glad that they’re here because we were a lonely voice in the wilderness for many years extolling the benefits of what offshore wind could do for the Commonwealth of Massachusetts.”

House leaders are preparing an omnibus energy bill that’s expected to include language aimed at encouraging offshore wind energy production.

Parker said Cape Wind’s interest in the energy legislation and reversing the siting board’s decision shows that project officials are still determined to move forward. She said the transmission request denials were a “significant setback” to Cape Wind and said she believed they were based on “strong legal reasons.” Parker said deepwater offshore wind projects have been offered in “less conflicted locations” than Nantucket Sound.

Cape Wind officials were not available Wednesday at their Boston offices and a project official did not respond to an email inquiry about the appeal.

In an April 5 letter, the Cape Cod Commission, a regional land use and planning agency, expressed support for the siting board’s decision, saying it “balances the interests of the public, the Company and the parties to the proceeding to determine whether there have been changes in background conditions and whether the length of the extension is reasonable.”

Cape lawmakers also wrote the siting board earlier this month urging the board to deny the extensions.

“While we certainly support renewable energy, Cape Wind is the wrong project in the wrong location. It has long been mired in controversy due to its conflicted location in the center of Nantucket Sounds, as well as high costs associated with this now outdated project,” Reps. Sarah Peake, Brian Mannal, David Vieira and Timothy Whelan wrote. “New projects being proposed offshore of Massachusetts are located in areas that have been vetted through a public process intended to minimize many of the problems Cape Wind would pose in its targeted location including: danger to public safety; historical and tribal impacts; and threats to marine mammals, fish and birds. These newer more distant offshore projects also would use more efficient, state of the art wind technology with larger turbines to drive down costs to Massachusetts ratepayers.”