Cape Wind faces five outstanding legal challenges

Little chance of lawsuits stopping project, but they add to cost

A total of five legal cases seeking to block construction of the 468MW Cape Wind offshore wind project have yet to be resolved, Windpower Offshore can report.

Last week saw the latest development, with a legal motion filed on 10 October seeking reversal of the US Department of Interior (DoI)’s approval of the project. The motion is part of a suit, first filed in 2010, alleging that Cape Wind should not have been approved because of potential harm to endangered and threatened species.

Plaintiffs include Cape Wind’s most vocal opponent, the Alliance to Protect Nantucket Sound.

The suit is one of five outstanding legal challenges to Cape Wind, which completed permitting in August. In all of the cases, plaintiffs are challenging administrative procedure in the US federal government’s approval of the project.

In June, Cape Wind developer, Energy Management Inc (EMI), announced withdrawal of a legal suit brought by local fishermen and an associated agreement that will see EMI support the fishermen’s purchase of commercial fishing permits.

Four of the remaining suits have been consolidated and will be heard by the same district court. Two of the consolidated suits accuse the DoI, Coast Guard and Army Corps of Engineers of breaking the US National Environmental Policy Act and Outer Continental Shelf Lands Act.

Another suit, mounted by a small local Native American tribe accuses the DoI of violating its tribal and historical rights.

Meanwhile, one of the suits continues a long-standing battle against the Federal Aviation Authority’s (FAA) decision that Cape Wind’s turbines would pose no threat to local air navigation.

None of the suits has more than an "outside chance" of success, according to Jennifer Simon Lento of law firm, Nixon Peabody. Lento describes the suits’ arguments as "difficult" to make:  "[The plaintiffs] are trying to outspend [EMI] on litigation and procedural costs without a valid legal basis."

EMI hopes to complete financing by mid-2013 and to begin cable work later that year.