Cape Wind project denied on procedural grounds

In a unanimous vote, Thursday afternoon, the Cape Cod Commission voted to deny Cape Wind's proposal to lay underwater cables from 130 turbines in Nantucket Sound to the NSTAR switching station in Barnstable.

The rejection was on procedural grounds.

Four commissioners were absent and Alan Platt recused himself so the vote was 12-0.

"We're disappointed with the decision by the commission today," said Cape Wind spokesman Mark Rodgers afterwards. "It is our plan to move forward. A major federal report is due out next month (from the Minerals Management Service). We'll be looking to have today's decision by the Cape Cod Commission reexamined. We'll be meeting with our attorneys to figure out the exact path that will take."

Cape Wind attorney David Rosenzweig expounded on several possible lines of legal recourse during his address to the Commission. Rodgers also noted that state Secretary of Environmental Affairs Ian Bowles, who determined Cape Wind met the requirements of their Final Environmental Impact Report on March 29, could overrule the Commission as he did regarding a decision concerning the Keystone Gas Co.

"If the decision today was overturned," Rodgers ventured, "In our opinion that would be the end of it."

The Commission left open the possibility that it wasn't the end, noting Cape Wind could reapply; with documentation addressing all its concerns. But that won't happen immediately.

"That's not a question I can answer today," Rodgers said.

Opponents of the project were pleased.

"We're very happy with it," countered Cliff Carroll, co-founder of Windstop.org. "I think it's long overdue. It is the beginning of the end of this project. In six years the developer has still not disclosed what the electricity will cost us, or the type of oil in the10-story transformer platform and they're ignoring the radar risks that have been raised. They have not met the benefits/detriments test and I don't think they ever will."

Carroll told the Commission they were correct in considering the project's overall impact.

"For Cape wind to try to prevent the Cape Cod Commission from considering this 24 square mile industrial park as a development of regional impact is absurd," he said.

We're pleased the ruling went the way it did," agreed Glenn Whattley, CEO of the Alliance to Protect Nantucket Sound. "The Cape Cod Commission did do the right thing. We think the subcommittee did an excellent job. If you don't have the right information how can you make a ruling?"

Commission member Leo Cakounes of Harwich was reluctant to deny the application.

"I would rather have had the decision written to approve with conditions," he said. "I believe it could have been written well enough that if conditions were not met permits would not be issued. The subcommittee decided to go a different route."

The subcommittee recommended a procedural denial of the proposal because insufficient information was provided by Cape Wind to assess whether the project met minimum performance standards on 17 of 31 topics concerning energy, water resources, air quality, historic preservation and community character, coastal resources, wildlife and natural resources, economic development, capital facilities and infrastructure and affordable housing. Also much that was presented was not timely and requests for Cape Wind to grant extensions were refused and the Commission was unable to assess the benefits and detriments of the proposal.

"We need more information about stormwater issues. We have open space issues. When you're dealing with a cable that will be jet ploughed into the seabed there are a number of issues with sedimentation, shellfish, eelgrass." subcommittee chairwoman Elizabeth Taylor told the Commission. "We never got down to benefits and detriments."

One of Cape Wind's themes was that they'd provided more than enough data.

"The review of Cape Wind's proposed transmission lines has been extensive and unprecedented, spanning nearly six years before the Commission," Rosenzweig said.

He also said the Commission failed to begin it's review within 45 days of Bowles' decision, as required by statute, and failed to holding hearings with 90 days as also required.

"The matter before the Commission is the transmission lines and not the wind park," he reminded them.

He said details of Cape Wind's plans would be known when all authorities weigh in and construction contractors were hired.

Public response

Rosenzweig isn't the only one who believes Cape Wind was run through the wringer.

"More than 8,000 pages of federal and state permitting related reports have been released," Barbara Hill of Clean Power Now said. "In taking this regrettable step the Commission is providing the people of the Cape all the evidence they need to know that the Commission has been captured by a few special interests with enough money to buy just about anything they want, including the government agency intended to protect us all."

That viewpoint didn't go over will with the Commission.

"I take exception to the remarks of Barbara Hill," declared Commission member Bill Doherty, his voice rising to a shout. "The insinuation that I have received any money or anyone has received financial gain that would change our opinions of what we are doing - I think that is absolutely out of place!"

But Barnstable's assistant town attorney Charles McLaughlin thought Cape Wind had a cavalier attitude.

"I suggest Cape Wind regards the Commission as superfluous and powerless and without authority to review this project," he said. "[Cape Wind] has a superb public relations group that has managed to sell the proposal that green is good at any cost."

"Does Cape Wind want Cape Cod Commission approval?" wondered Yarmouth Selectwoman Suzanne McAuliffe. "Perhaps they don't think they need it."

Once more Cape Wind focused on the Commission's passing on an opportunity to oversee the electric cables from Nantucket to the mainland.

"The similarities between the two projects are striking," Rosenzweig declared.

"We've given them more information about the electric cables we are proposing than anybody in the Commonwealth has ever given about electric cables," Rodgers told reporters afterwards. "You heard the discussion today, about one of the concerns being eelgrass. Our cables do not go through eelgrass. The Commission chose not to perform a DRI review over the Nantucket cables that went in just last year. They could have done that, and their cables went right through an eelgrass bed."

The Conservation Law Foundation, which supports the project, was also concerned about evenhandedness.

"We care very very deeply about fair process," attorney CLF Susan Reid told the Commission. "The commission itself recommended that an EIR (Environmental Impact Report) not be required for Nantucket cable. What's different is that Cape Wind proposed it be allowed to build an important clean energy project. This should be a significant benefit but unfortunately here it seems to be viewed as a significant detriment."

Cape Wind is now contemplating its future course, whether to reapply, hope the decision is overruled or appeal the decision.