SJC-10596: ALLIANCE TO PROTECT NANTUCKET SOUND, INC. & others vs. MASS. ENERGY FACILITIES SITING BOARD & others

Keywords: Administrative Law - Energy - Environmental Law - Local Government

Entered: November 4, 2009 • Argument: February 11, 2010 • Full Docket

Parties:

Alliance Protect Nantucket Sound Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Lindsey Counsell Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Susan Nickerson Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Hank Walcott Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Christy Mihos Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Patty Dineen Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Barbara Cambal Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Martha Powers Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Robert M. Bussiere Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Cathleen Bussiere Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Doris Rodensky Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Robert Edgar Bowdoin Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Sandy Taylor Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Ed Barrett Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Roberta Murphy Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire

Theodore Zambellis Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire, William L. Lahey, Esquire

Dorothy Robinson Plaintiff/Appellant
represented by Douglas H. Wilkins, Esquire, William L. Lahey, Esquire

Town of Barnstable Plaintiff/Appellant
represented by Charles S. McLaughlin, Esquire

Cope Cod Commission Plaintiff/Appellant
represented by Eric W. Wodlinger, Esquire, Gareth I. Orsmond, Esquire

Cape Cod Commission Plaintiff/Appellant
represented by Eric W. Wodlinger, Esquire, Gareth I. Orsmond, Esquire

Energy Facilities Siting Board Defendant/Appellee
represented by Kenneth W. Salinger, A.A.G., Annapurna Balakrishna, A.A.G., Kathryn M. Sedor, leco

Department of Environmental Protection Defendant/Appellee
represented by Kenneth W. Salinger, A.A.G., Annapurna Balakrishna, A.A.G.

Cape Wind Associates, LLC Defendant/Appellee
represented by David S. Rosenzweig, Esquire, Erika J. Hafner, Esquire

Conservation Law Foundation Intervener
represented by Shanna Cleveland, Esquire

Clean Power Now, Inc. Intervener
represented by Matthew F. Pawa, Esquire, Mark R. Rielly, Esquire, Benjamin A. Krass, Esquire

Town of Aquinnah Amicus
represented by Ronald H. Rappaport, Esquire, Michael A. Goldsmith, Esquire

Town of Edgartown Amicus
represented by Ronald H. Rappaport, Esquire, Michael A. Goldsmith, Esquire

Town of Chilmark Amicus
represented by Ronald H. Rappaport, Esquire, Michael A. Goldsmith, Esquire

Town of West Tisbury Amicus
represented by Ronald H. Rappaport, Esquire, Michael A. Goldsmith, Esquire

Martha's Vineyard Commission Amicus
represented by Mark J. Lanza, Esquire

National Grid Amicus
represented by Brooke E. Skulley, Esquire, Patricia Crowe, Esquire

Documents:

Appellant's Brief

Amicus Town of Aquinnah

This case was argued on February 11, 2010. The following analysis was written prior to argument.

Question Presented

Whether the Energy Facilities Siting Board (“EFSB”) acted within its authority in granting a set of approvals for the Cape Wind energy project.

Facts

Construction of an energy facility such as the Cape Wind project often requires approval by many state and local agencies, any one of which can block development.  To avoid that regulatory burden, the proponents of a development may petition the EFSB for a “certificate of environmental impact and public interest,” which supersedes all state and local approvals. G.L. c. 164, § 69K. See generally G.L. c. 164, § 69G-69R. However, the developer must first attempt in good faith to obtain the approvals directly. Id.

In this case, Cape Wind applied for Development of Regional Impact (“DRI”) approval from the Cape Cod Commission, a regional planning agency, and was denied without prejudice. Cape Wind then applied for and received a certificate from the EFSB. The certificate replaced some nine different state and local approvals, including the DRI approval and a Chapter 91 approval for tidelands development ordinarily granted by the Department of Environmental Protection (“DEP”).

Cape Wind’s development plans call for wind turbines and support structures to be constructed in Federal waters, and for transfer lines to be laid through state waters to connect to the power grid. A key issue before the EFSB was whether it could consider the environmental impact of the generators in Federal waters, or only of the transmission equipment in state waters.  The EFSB ruled that it lacked jurisdiction over the Federal development, and therefore excluded testimony as to the potential environmental impact of the generator portion of the development.

Issues

  1. Jurisdiction of the EFSB over approvals by the Cape Cod Commission. The jurisdictional question of whether the EFSB can supersede DRI approval is discussed in the related case of SJC-10578.
  2. Jurisdiction of the EFSB to grant a Chapter 91 tidelands license. The appellants argue that, under the public trust doctrine, the legislature must explicitly delegate control over state waters; it delegated control to the DEP in Chapter 91, but did not explicitly do so to the EFSB, and so the EFSB may not grant a Chapter 91 license to develop in tidelands. The appellants also argue, essentially, that the EFSB cannot issue approvals other than the kind whose denial first triggered its authority.
  3. Jurisdiction of the EFSB to consider out-of-state effects.  The appellants argue that the EFSB can, and indeed has, considered environmental impacts of out-of-state generators enabled by in-state transmitters, and that it is illogical and self-defeating not to consider the environmental impact of the wind turbines themselves in this case.
  4. Findings necessary for a certificate.  The appellants argue that the EFSB is required to consider whether a proposed development is a necessary and cost-effective means of delivering power to the Commonwealth, before waiving laws or rules to enable transmission equipment to be built.  The EFSB’s position is that it need only consider whether the waiver is necessary to the development, and that the market should decide whether the development is cost-effective.
  5. DEP regulations classifying Cape Wind’s development as “water-dependent”.  Projects that are not “water-dependent,” i.e. need not be created in the water, are subject to heightened environmental review if they are in fact built in the water. The DEP recently added transmission lines for off-shore generator facilities located outside the Commonwealth to its list of per-se water-dependent projects.  The appellants argue, essentially, that it is arbitrary and capricious to include transmission lines for facilities located outside the Commonwealth, but not within it.

Discussion

The appellants are relatively unlikely to succeed in their claims that the EFSB lacks jurisdiction over the Cape Cod Commission or over tidelands (issues 1 and 2, above).  The EFSB’s purpose would be undercut if the legislature was required to specifically itemize each approval which a certificate can supersede; instead, the legislature used broad language in describing the EFSB’s authority.  Similarly, the Court is unlikely to second-guess the DEP’s classification of water-dependent facilities (issue 5, above).

More interesting is the EFSB’s decision below that it cannot consider the out-of-state environmental impacts enabled by an in-state certificate, even if they will propagate into the Commonwealth, and that it cannot consider whether a development is sufficiently economically viable to justify its environmental impact (issues 3 and 4, above). These self-limiting holdings by the EFSB could potentially interfere with its ability to regulate environmentally costly development. The EFSB has a great deal of power to override environmental regulations by other bodies; limits on its own cognizance of environmental impacts are worrying.

Request For Comment

It is difficult to discuss the Cape Wind project without considering the vested interests of the parties involved.  For example, the Cape Cod Commission, the EFSB, and the DEP have all made relevant findings in this case — each potentially influenced by the dramatically different interest groups they represent.  If you would like to publish a comment on the political interests underlying this dispute, and whether or how they should affect the Court’s delineation of the EFSB’s power, please contact me.

Note: The preceding analysis is based on a review of the documents listed above, and does not represent knowledge of the underlying facts. At the time of writing, materials were not available from all parties.

Please contact M.A.B. with any comments or corrections.

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