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Cape Wind approved | Legal obstacles

Litigation is likely to result in delay only, specialists say

By Jonathan Saltzman
Globe Staff / April 29, 2010

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Even before US Interior Secretary Ken Salazar announced approval of Cape Wind yesterday, foes of the nation’s first offshore wind farm vowed to take the matter to court.

But legal specialists say that it is highly unlikely that legal challenges would ultimately succeed, given precedents set by previous federal court rulings and the extraordinary regulatory hurdles that the project has cleared over the past decade.

At most, litigation could delay completion of the 130 turbines in Nantucket Sound for a couple of years, said Patrick A. Parenteau, a professor of environmental law at Vermont Law School. But the chances of getting a federal court order to prevent construction from even starting are almost nil, he said.

“People have been poring over this project with a fine-tooth comb for so long that my litigator’s instinct tells me it’s going to be very hard to find a fatal flaw in what they’ve done,’’ he said.

If opponents have deep pockets, said Zygmunt J.B. Plater, who teaches environmental law at Boston College Law School, “there are ways to string this out’’ through litigation. “But what we’re talking about is delay,’’ he said.

Barely three hours after Salazar announced approval of the turbines, which would lie about 5 miles from the nearest shoreline and cover 24 square miles, the Alliance to Protect Nantucket Sound issued a statement saying opponents will immediately file suit.

“Litigation remains the option of last resort,’’ said Audra Parker, president and chief executive of the alliance, the main group fighting the project. “However, when the federal government is intent on trampling the rights of Native Americans and the people of Cape Cod, we must act.’’

Last month, a coalition of environmental groups filed a 60-day notice with the Interior Department and with Secretary of State William F. Galvin, stating that they intended to sue in federal court if the project won approval.

Opponents include environmental groups worried about the potential effects of turbines more than 400 feet tall on endangered migratory birds, homeowners on the Cape and Islands upset about turbines spoiling views from shore, and the Aquinnah Wampanoag Tribe on Martha’s Vineyard. The Indians contend that the project would disturb spiritual sun greetings and threaten ancestral artifacts on a seabed that was once exposed land.

But specialists in Native American law and environmental law say legal challenges are likely to fail.

In a landmark case in 1988, the US Supreme Court ruled that federal law and the Constitution do not protect the rights of American Indians to practice their religions on federal land off reservations.

Parenteau said environmental groups have traditionally had a tough time obtaining preliminary injunctions to block projects because they must prove that even starting construction would cause irreparable harm. In recent years, he said, the Supreme Court, under Chief Justice John G. Roberts Jr., has made it even harder to get such court orders.

Although litigation could make it harder for the project to obtain financing, Parenteau said, “I don’t see a showstopper here in any of the legal cases.’’

Saltzman can be reached at jsaltzman@globe.com.