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Suffolk University Law Student

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Brandy H.M. Brooks
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Alexander von Hoffman
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Margarita Warren
Student at Suffolk University Law School

Bogged in Bureaucracy: Lessons Learned from Cape Wind

Wednesday, May 4th, 2011
By Sara Farnum

The recently completed approval process of the offshore wind farm Cape Wind was a 10-year bureaucratic nightmare. There must be a better way of vetting such proposals — for the benefit of proponents and opponents alike. And with many similar proposals on the horizon, the government ought to act quickly to find better ways of reviewing and approving such projects.

In 2001, Cape Wind Associates LLC developed the proposal to build a wind farm off the coast of Cape Cod in Massachusetts. The wind farm would be located on Horseshoe Shoal in Nantucket Sound and consist of 130 wind turbines arranged in a grid pattern covering 25 square miles. The project was expected to produce an average of 170 megawatts, enough to satisfy 75 percent of Cape Cod’s electricity demand. It was expected to reduce greenhouse gas emissions by 734 tons of carbon dioxide per year.

During the permitting process, Cape Wind encountered a confused and bewildered regulatory bureaucracy. When the Cape Wind developers first filed for permits, government agencies tried to apply existing procedures to the new wind technology. Conflicts immediately arose. The project required many permits and environmental impact statements, and it was unclear which governmental agencies had final approval power.

In November 2001, Cape Wind Associates applied for a permit from the US Army Corps of Engineers. The Army Corps asserted jurisdiction over Cape Wind because they had the authority over all construction in navigable waters, including parts of Nantucket Sound. However, both state and federal governments became involved since the wind tower was to be constructed in federal waters and the underwater cables would extend to mainland Massachusetts. Therefore, Environmental Impact Statements had to be reviewed under both the Massachusetts Environmental Policy Act and the National Environmental Policy Act.

The confusion over which agencies could approve the permits and environmental impact statements created an avenue for local opposing groups to organize and fight through numerous lawsuits. The primary opponent was the Alliance to Protect Nantucket Sound, a non-profit organization formed in 2001 to prevent the project from being approved. The Alliance has spent approximately $800,000 on outside lobbying and lawsuits, which effectively slowed the approval process.

As various lawsuits continued from local groups, tribal groups also challenged the project. The Wampanoag Indian Tribes feared Cape Wind would create adverse effects to cultural resources within the area. Further, the Wampanoags argued the project violated their rights because the tribes depended on unobstructed views of the coast for their sacred sunrise ceremonies. The tribes raised this issue to the Massachusetts State Historical Preservation Officer who in January 2010 determined that Nantucket Sound was eligible for listing on the National Register of Historic Places.

While the Cape Wind controversy continued, interest in wind project development and technology continued to grow elsewhere. The US government encouraged additional projects to line the Atlantic coastline because of their capacity for large, utility scale electricity production. So far, eleven states- including Virginia, Maryland, Delaware, New Jersey, North Carolina, and Rhode Island- have identified promising offshore areas for wind development. These other projects are looking to Cape Wind, for lessons on navigating the approval process.

During the review of Cape Wind, the federal government acknowledged the need for improvement in the approval process. In August 2005, for example, Congress passed the Energy Policy Act, which granted authority over renewable energy projects on the outer continental shelf to the Minerals Management Service within the Department of the Interior. The MMS was delegated the authority to grant leases, easements, and rights-of-way for offshore wind farms and took over the review process from the Army Corps.

That gave Ken Salazar, the Secretary of the Department of the Interior, the authority to give final approval of the Cape Wind project. After taking into consideration comments from local and tribal groups, and the Record of Decision prepared by the MMS, Salazar approved the project on April 28, 2010. A commercial wind lease was granted to Cape Wind Associates and plans for construction were finalized.

Meanwhile, the federal government has continued to review the process and has proposed a modification for approving similar wind projects in the future. In 2010 the Interior Department announced a new plan for reorganizing the MMS. The MMS would be split into three agencies: the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement, and the Office of National References Revenue. Each agency would be responsible for oversight of renewable energy projects, including the planning, approval, evaluation, leasing, distribution of revenue, compliance, and enforcement of future offshore wind farms.

Despite the government’s master plan to split the MMS into three agencies, the reorganization is unlikely to make the process coherent. In fact, it will likely make the process more complex and difficult to understand. There is a great possibility that turning one agency into three will result in conflicting authority, thus fueling future lawsuits.

There is still much work to be done to make the legislative process more efficient. For the US to continue developing offshore wind power as an alternative energy source, the legislative process must be reformed to keep up with the evolving technology, prevent continuous legal battles, and expedite wind power permitting. The success of future projects needs an improved regulatory process and a clear framework adaptable to an evolving technology. The longer we wait to streamline the process, the more opportunities are lost to harness the vast economic and energy benefits of offshore wind power.



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