Judge rules against foes of wind farm

Says state lacked a right to block the test tower

By Beth Daley and Stephanie Ebbert, Globe Staff, 8/21/2003

A federal judge in Boston has ruled against an initial effort to block the country's first offshore wind farm in Nantucket Sound, saying the state would have had no authority to stop construction of a test tower now operating there.

The ruling -- one of the first legal decisions in the escalating fight to build 130 turbines off Cape Cod -- could make it harder for opponents to challenge the larger decision about where the full-scale wind farm would be placed.

"This removes one arrow from the quiver of anyone seeking to block a wind farm in Nantucket Sound," said Seth Kaplan, an attorney with the Conservation Law Foundation, which has not taken a position on the project.

The 197-foot tower, which became operational last spring, tracks wind speeds, wave heights, currents, and other information needed to design the proposed wind farm. The plaintiffs challenged the tower partly to test the prospects for a legal fight against the wind farm itself.

The lawsuit argued that Cape Wind, the developer of the proposed wind farm, needed a state permit to build the tower. Although the tower is in federal waters, which begin 3 miles from the coast, the state was granted control over fisheries in all of Nantucket Sound 20 years ago. Plaintiff attorney John W. Spillane of Worcester argued that a permit was needed because of the potential harm the tower could have on fisheries.

But First District Judge Joseph Tauro said the state's jurisdiction over fisheries did not extend to construction. Nothing in the law "supports the proposition that regulating non-fishing activities simply for the protection of fish falls under the Commonwealth's jurisdiction."

Spillane yesterday said his clients, who include the Massachusetts Boating and Yacht Clubs Association, would "immediately" appeal the decision.

The offshore wind farm is quickly becoming one of the hottest political issues in the state, with a crowd of celebrities and politicians including Walter Cronkite and US Senator Edward M. Kennedy saying a wind farm could harm views and wildlife in Nantucket Sound.

On the other side, however, is an equally long list of scientists and other supporters who see the farm as a cornerstone in a national effort toward more renewable power, and charge its opponents with self-interest.

Opponents and state officials argue that there is no firm regulatory structure to determine how and where offshore wind farms can be built in federal waters, and that the plan should be halted until a clear approval process is established. A powerful anti-wind farm group, the Alliance to Protect Nantucket Sound, also filed suit in federal court saying that the Army Corps of Engineers, which licensed the construction of the data tower, had no authority to permit the use of "public waters" to a private developer without clear guidelines in place. That case is pending in federal court.

Yesterday, Mark Rodgers, a Cape Wind spokesman, said his company was encouraged by Tauro's decision and hopeful that it would set a precedent for the court's view of the use of federal waters. However, he acknowledged that the state could still play a significant role in reviewing the project. Although the Army Corps of Engineers leads the overall environmental review, three state agencies could try to exert control over the process: the Executive Office of Environmental Affairs, which oversees a state environmental-impact review; the Office of Coastal Zone Management, which has authority over the state waters near the project; and the Massachusetts Energy Facilities Siting Board, which must approve projects that connect to the state's electricity transmission system.

Potentially thornier issues could arise during those reviews, or related legal challenges, because Cape Wind's electric transmission lines will cross state waters. A state official has indicated the state intends to look closely at those transmission lines to see if that could be an avenue to exert more influence over the project. Meanwhile, Governor Mitt Romney has called the wind farm inappropriate for Nantucket Sound.

"With the project itself, it's a much bigger review process and we get many different jurisdictions involved," said Rodgers.

Ernie Corrigan, a spokesman for the Alliance to Protect Nantucket Sound, argued yesterday that Tauro's ruling had "little bearing at all" on the final outcome of the wind farm.

"We think that the judge was dealing with an issue that was probably first up and easiest to resolve," Corrigan said, "but I think there's a general understanding that this is really the first inning and it's going to be a long game."

John Ellement of the Globe staff contributed to this article. Beth Daley can be reached at bdaley@globe.com. Stephanie Ebbert can be reached at ebbert@globe.com.