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SJC gives Cape Wind go-ahead to start construction

Print | Comments () Posted by John Ellement August 31, 2010 12:30 PM

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By Beth Daley, Globe Staff

A divided Supreme Judicial Court ruled 4-2 this morning that the state has the power to overrule community opposition and grant the controversial Cape Wind project a suite of local permits it needs to start construction.

The long-awaited decision comes as the project developers enter the homestretch to build 130 turbines in Nantucket Sound within the year. If the court had sided with opponents of the project, it could have held up the project indefinitely or killed it outright because many permits have to come from communities or agencies that oppose the project.

"We affirm the decision of the siting board and conclude that the challenged regulation is valid,'' Justice Margot Botsford wrote for the four-justice majority.

But Chief Justice Margaret H. Marshall and Justice Francis X. Spina voted against approving the permitting process.

"We must determine whether the approval process of the Cape Wind project comports with the laws of the Commonwealth,'' Marshall wrote in her dissent. "It does not.''

While Marshall and Spina dissented on the overall approval of the permitting process, they concurred with other parts of the ruling.

While the wind farm will be built in federal waters, beyond the reach of most state and local agency decisions, a transmission line will cross state waters and interconnect on land, giving various governments authority to review pieces of the project. Included are the towns of Barnstable and Yarmouth and the Cape Cod Commission.

The commission denied the project a permit in 2007, saying it did not have enough information to make a decision. Cape Wind immediately appealed to the state Energy Facilities Siting Board, created more than 35 years ago in part to evaluate energy projects that may be unreasonably held up or burdened by local permitting processes.

Raising the temperature of the already heated debate, Cape Wind asked not only for the board to overrule the Cape Cod Commission but for all nine local approvals to be evaluated as one by the board.

The board, headed by Ian Bowles, the state secretary for Energy and Environmental Affairs, agreed and issued one "superpermit.'' The main opposition group, the Alliance to Protect Nantucket Sound, the Cape Cod Commission, and the Town of Barnstable then appealed to the state's highest court.