Whether the Massachusetts Energy Facilities Siting Board (“EFSB”) has the power to override the rejection by the Cape Cod Commission (“Commission”) of a proposed wind farm development.

Cape Wind Associates, LLC applied for Development of Regional Impact (“DRI”) approval from the Commission, pursuant to St. 1989, c. 716. The Commission denied the application without prejudice on the grounds that Cape Wind failed to provide sufficient information to evaluate the project. Rather than directly appealing that decision, Cape Wind then filed an application for a “certificate of environmental impact and public interest” from the EFSB, pursuant to G.L. c. 164, § 69G et seq. The EFSB issued a certificate authorizing the Cape Wind project and waiving any local permit requirements including the DRI approval.

A Superior Court denied the Town of Barnstable’s request to enjoin the EFSB proceeding prior to its completion, because the Town had not exhausted its administrative remedies before the EFSB, and this appeal followed.

1. Exhaustion of administrative remedies. The plaintiffs argue that they did not need to exhaust administrative remedies, because this case relates solely to the statutory jurisdiction of the EFSB rather than to its conclusions. This issue is likely moot, because the EFSB’s decision has now been directly appealed in a companion case, SJC-10596, whose resolution will make this procedural question irrelevant.

2. Jurisdiction of the EFSB and the Commission. The substantive issue is whether the EFSB has the power to waive the need for a DRI approval from the Commission.  The Commission argues that St. 198, c. 761, § 17 makes “appeal … to the Barnstable county superior court or the land court” the exclusive remedy for a DRI denial. The Commission further argues that the EFSB’s enabling legislation permits it to override decisions of a “state or local agency or body” but not a “state agency or local government,” G.L. c. 164, § 69K, and that the Commission is a “local government” as defined in G.L. c. 164, § 69G.

This case presents a fine point of statutory interpretation. It is not clear that the Commission is correct that an “exclusive remedy” for a DRI denial also forbids procedures that would make a DRI approval irrelevant. Nor is it clear that the legislature meant to exclude the Commission from the category of “state or local agenc[ies] or bod[ies]” simply because it is also a “local government.”

The statutory ambiguity may leave the Court looking to policy, requiring it to balance the goals animating the EFSB (to promote environmentally sustainable energy production) against those of the Commission (to protect the historical character of Cape Cod). Where the goal of the EFSB is to override local interests in the narrow area of energy production, it seems likely that the Court will find for the EFSB.