March 17, 2014

Court Rules for Cape Wind, Ending a Decade of Failed Opposition

By Lewis Milford

If you are an environmental lawyer, there is nothing more deflating than reading a judge’s decision that clinically rejects all your best arguments. I know because I have had my share of losing environmental cases.

But this time, it is that kick-in-the-stomach feeling that the lawyers for the opponents of the Cape Wind offshore wind project must have felt when they read Judge Reggie Walton’s decision last Friday. The federal court ruling, ten years after the project was first proposed, should clear the way for the construction of the first large scale offshore wind project in the U.S.

Judge Walton did require that two minor administrative claims be sent back and fixed by the federal agencies, but no one seriously thinks those matters will be a road block to the project’s construction.

So what does the decision mean, assuming that it ends a decade of fruitless litigation?

First, it is good news for the development of offshore wind projects in the United States. In a few years, we will have the first major offshore wind project in the water, along with others, showing the rest of the US how it can deploy this much needed renewable energy resource at scale.

Second, it is good news for jobs in the offshore wind industry and its supply chain companies. Already, the Cape Wind developers have contracted with businesses in New Jersey, South Carolina, Maine, and Massachusetts to build different parts of the project, from cables to port facilities. Soon, we will start seeing the major economic benefits from offshore wind come to the U.S.

Third, the decision is an environmental roadmap for other offshore wind projects. It shows how federal agencies and developers can comply with environmental laws like NEPA, the Endangered Species Act, and the Migratory Bird Act for many new offshore projects in other parts of the coast.

Fourth, it shows opponents that they can delay, but not stop, sound offshore wind projects by twisting the meaning of environmental review. The Cape Wind project is probably one of the most litigated energy projects in the U.S. In the end, none of the claimed environmental harms was significant. None of them caused a judge to halt the work.

Fifth, it shows, however, that delay can cause great harm to the growth of a new energy industry. Cape Wind could have been built years ago, delivering emissions-free energy and creating jobs up and down the East Coast in industries like ports and shipping hard hit by the Great Recession.

Sixth, it shows the amazing resiliency of people who believe in this industry. Jim Gordon, the project developer of Cape Wind, never gave up against amazing odds and powerful interests. We can only hope that other developers have the tenacity he has shown over the past decade.

And finally, maybe the most important, the winners of this case are the rule of law and our independent federal courts. Well-heeled opponents might have influence over other branches of government but there is one thing they cannot buy—a federal judge with a duty to be fair and impartial.

Let’s hope that Cape Wind is the first of many offshore wind projects in the U.S, and that any future opponents will get on the right side of history and support these projects.

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