On Friday, March 14, 2014, the United States District Court for the District of Columbia released a much anticipated decision in the ongoing litigation challenging government approvals for the Cape Wind project, an offshore wind energy facility proposed to be located in Nantucket Sound off the coast of Massachusetts. Cape Wind Associates, LLC, developer of the project and an intervenor in the litigation, began preliminary work on siting and designing the 130-turbine offshore wind energy facility in 2000, and first filed for a permit with the U.S. Army Corps of Engineers in November 2001. Since that time, Cape Wind has worked with state and federal agencies to obtain the authorization required to become the first offshore wind energy project in the United States.
In April 2010, the proposal received final approval from the required federal agencies. Shortly thereafter, the current litigation was filed against the agencies by plaintiffs, a collection of public interest groups and individuals, the Town of Barnstable, Massachusetts, and the Wampanoag Tribe of Gay Head (Aquinnah).
The Court granted summary judgment in favor of the government agencies on claims asserted by plaintiffs challenging the project. The plaintiffs raised issues involving navigational safety, alternate locations for the proposed project, alternate technologies, historic preservation, Native American artifacts, the project’s effect on sea turtles and migratory birds, and the adequacy of the project’s environmental impact statement and biological opinions. Although the Court generally upheld the approvals, it did remand, however, two issues to the approving federal agencies for clarification of their respective administrative decisions.
CURRENT LITIGATION BACKGROUND
The Court’s decision in this litigation involved cross-motions for summary judgment regarding certain administrative decisions made by the U.S. Department of the Interior, the U.S. Bureau of Ocean Energy Management (BOEM), the U.S. Fish and Wildlife Service (FWS), the U.S. National Marine Fisheries Services (NMFS), the U.S. Army Corps of Engineers, and the U.S. Coast Guard, in approving various aspects of the Cape Wind project under applicable environmental and administrative law statutes.
These statutes include the Administrative Procedure Act (APA); the Endangered Species Act (ESA); the Migratory Bird Treaty Act; the National Environmental Policy Act; the Outer Continental Shelf Lands Act; the Coast Guard and Maritime Transportation Act of 2006; the Clean Water Act; the Rivers and Harbors Act; the Energy Policy Act of 2005; and the National Historic Preservation Act.
Due to the national significance of the Cape Wind project, several other parties, who all filed briefs in support of the Cape Wind project, were granted leave to participate in the litigation, including: Cape Wind Associates LLC, the Conservation Law Foundation, the Natural Resources Defense Council, and the Massachusetts Audubon Society.
THE COURT’S DECISION
According to the Court’s March 14, 2014 opinion, under the APA “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Using this standard of review, the Court granted summary judgment to the federal agencies on all claims, except for the two discussed below.
First, the Court found that the FWS failed to make an independent determination that a proposed operational restriction, known as feathering, was not a reasonable and prudent measure required to protect birds. As required by the ESA, the FWS must make a decision in this regard independent of the determination made previously by BOEM and Cape Wind. Second, the Court found that NMFS is required to include an incidental take statement with its biological opinion that describes the number of North American right whales that may be adversely affected by the proposed project. The Court noted that an incidental take statement is required despite the finding in BOEM’s biological opinion that the project is not likely to adversely affect the right whale. The Court remanded both of these decisions to the agencies for clarification and, by order, administratively closed the case until such clarifications are provided.
MIXED REACTIONS TO THE COURT’S DECISION
In a press statement released Friday by Cape Wind, the company called the decision a “major legal victory” and noted that compliance with these two “minor agency administrative decisions” would not impact the project’s financing schedule. Viewing the decision differently, the Alliance to Protect Nantucket Sound, a lead plaintiff in the case, released a statement that the decision was a major setback for the proposed project. The Alliance also noted that appeals may be forthcoming on the claims for which the Court granted summary judgment to the United States.
Considering the strong support for U.S. renewable energy development by the Obama administration, and the decade of work already devoted to the Cape Wind project, it is anticipated that the federal agencies will work quickly to resolve the two outstanding issues the Court requires be resolved to move the project forward.