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SJC ruling gives Cape Wind project green light to build

4-2 decision backs state permit board

By Beth Daley
Globe Staff / September 1, 2010

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A divided Supreme Judicial Court ruled yesterday that a state board had the power to sidestep community opposition to grant the controversial Cape Wind energy project local and state permits it needs to start construction in the waters off Cape Cod.

The long-awaited 4-2 decision removes a potential obstacle to the wind farm as its developers prepare to start building 130 turbines in Nantucket Sound within the year. If the court had sided with opponents, the project would probably have been delayed indefinitely or killed outright because several permits would have had to come from a community and a regional agency that oppose the project.

Cape Wind still must win approval from the state Department of Public Utilities, which is reviewing National Grid’s agreement to purchase half of the wind farm’s expensive power.

The court upheld a May 2009 decision by the Energy Facilities Siting Board to issue nine local and state permits to Cape Wind, even though the Cape Cod Commission, a regional planning and regulatory agency, had denied one of the permits, for a transmission line.

’’We affirm the decision of the Siting Board and conclude that the challenged regulation is valid,’’ Justice Margot Botsford wrote for the majority.

But Chief Justice Margaret H. Marshall and Justice Francis X. Spina disagreed in part, arguing that the Siting Board had no authority to make a decision on one specific permit — whether cables can cross state tidelands — and should have also considered some in-state effects of the proposed wind farm being built in federal waters.

The court’s ruling “establishes a dangerous and unwise precedent, which has far-reaching consequences,’’ Marshall wrote. “A wind farm today may be a drilling rig or nuclear power plant tomorrow.’’

The ruling was issued as the state attempts to wrest more authority from communities over placement of renewable energy projects as efforts to build wind farms in Massachusetts stall over aesthetic, noise, and other complaints. A bill that would have made it easier to site wind farms in the state was not passed by the Legislature in its most recent session because the Senate ran out of time to pass it, but it is expected to be approved next year.

Cape Wind Associates, developers of the project, hailed the court’s decision as a major step forward, while opponents, who filed a lawsuit in June challenging federal approval of the project, pledged to keep fighting. It is one in a series of losses for opponents who have sought to delay the project over a host of concerns.

“Despite this outrageous ruling, the Cape Wind fight is far from over,’’ said Audra Parker of the Alliance to Protect Nantucket Sound. “There are numerous federal lawsuits, and, despite this ruling, the tide has turned against Cape Wind because of its outrageously high cost.

While the wind farm is proposed in federal waters, beyond the reach of most state and local agency decisions, a transmission line will cross state waters and tie into the region’s electricity grid on land, giving various government agencies authority to review pieces of the project, including the towns of Barnstable and Yarmouth and the Cape Cod Commission.

That commission denied the project a transmission line permit in 2007, saying it did not have enough information to make a decision. Cape Wind immediately appealed to the Energy Facilities Siting Board, created in part to evaluate energy projects that may be unreasonably held up or burdened by local permitting processes.

Cape Wind asked the board to overrule the Cape Cod Commission, but also for all nine local and state approvals to be evaluated as one by the board.

The nine-member Siting Board — which is headed by Ian Bowles, the state secretary of energy and environmental affairs, who strongly supports the offshore project — agreed with Cape Wind and issued one “super permit’’ in 2009. The Alliance, the Cape Cod Commission, and Barnstable then appealed to the state’s highest court.

Yesterday, the majority of justices said the law allows project developers to appeal to the Siting Board for a consolidated permit and that included the tideland permit Marshall took issue with.

Bowles said that he was gratified by the decision and that “this important renewable energy project now has all the state and local permits it needs to go forward.’’

Jim Gordon, head of Cape Wind, was also pleased, saying the SJC underscored that the “Energy Facilities Siting Board conducted a very thorough regulatory process.’’

Beth Daley can be reached at bdaley@globe.com.