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Cape Wind bogged down in lawsuits

CAPE COD, Mass. – Eight months after the Obama administration approved what it hopes will be America’s flagship offshore industrial wind energy factory in the waters of Nantucket Sound that are sacred to the Wampanoag nations, the Cape Wind project is swamped in litigation filed by a rising tide of opposition.

When Interior Secretary Ken Salazar approved the $6 billion Cape Wind project last April, he did so despite objections from local towns, state and federal legislators, environmentalists and federal historic preservation agencies, who fear the project will devastate the Sound’s rich biodiversity, and impact dozens of significant traditional, cultural, historic and archaeological properties.

He also bypassed strong opposition from the Mashpee Wampanaoag Tribe and Aquinnah Wampanoag Tribe on Cape Cod and Martha’s Vineyard, respectively, who said the wind energy plant’s 130 turbines towering 440 feet above ocean level spread across 25 square miles of Nantucket Sound would obliterate their unimpeded view of the rising sun that is crucial in ceremony and destroy the ocean bed that was once dry land where their ancestors lived and died.

“All of us in this, the Cape Cod and Islands region, will lose,” said Cheryl Andrews-Maltais, Aquinnah Wampanoag chairwoman. “Our entire regional economy will be devastated, our precious waters fouled and our entire way of life changed. But even worse for my people, our rights to our spiritual, traditional and cultural practices will have been trampled, and the archaeological evidence of our ancient ancestors will be destroyed forever.”

In the latest legal action against the proposed Cape Wind installation, multiple appeals have been filed in Massachusetts Supreme Judicial Court to overturn a decision by the Department of Public Utilities to approve the Cape Wind-National Grid power purchase agreement.

Cape Wind agreed last spring to sell half of the power it would generate to National Grid for 20.7 cents per kilowatt hour (kWh) Massachusetts Attorney General Martha Coakley later announced she had reached an “agreement in principle” with Cape Wind-National Grid to lower the cost to 18.7 cents per kilowatt hour with a 3.5 percent increase each year. A buyer for the other half has not yet been found.

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On Dec. 13, the Alliance to Protect Nantucket Sound, a nonprofit grass-roots organization that has led the opposition to the massive wind turbine proposal, announced that the Alliance, TransCanada and Associated Industries of Massachusetts – the largest business association in Massachusetts – have all filed separate appeals against the DPU’s approval of the power purchase agreement. The groups charge that the DPU decision violates several of its own directives including dismissing a competitive bid, failing to determine cost-effectiveness of the power purchase agreement, and discriminating against out-of-state resources.

“By rubber stamping a backroom, no-bid deal that violates the state’s own safeguards for competitively bid contracts and price effectiveness, the DPU has created a dangerous precedent,” said Audra Parker, the Alliance’s president and CEO.

The power purchase agreement approved by the DPU would force Massachusetts ratepayers to pay $2 billion in additional energy costs for Cape Wind’s power. At a rate of 18.7 cents per kilowatt hour, the energy produced by Cape Wind would be double the cost of other renewable energy sources such as hydroelectric energy and various land-based wind projects and over two times the current 9 cents energy price paid by Massachusetts consumers.

On Dec. 1, Californians for Renewable Energy, a nonprofit corporation that aims to educate and encourage the use of alternative forms of renewable energy, and Massachusetts resident Barbara Durkin, a CARE member and independent researcher who has focused for the last seven years on impacts to wildlife caused by wind turbines, filed a complaint with the Federal Energy Regulatory Commission against Cape Wind. National Grid, and the DPU Wind, and the Massachusetts Department of Public Utilities, “for their ongoing conspiracy to violate the Federal Power Act by approving contracts for capacity and energy that exceeds the utilities’ avoided cost cap.” The complaint also charges that the Cape Wind-National Grid agreement “usurps” FERC’s exclusive jurisdiction to determine the wholesale rates for electricity.

The complaint further charges that National Grid and the DPU have “aided and abetted Cape Wind’s fraudulent actions” by claiming both an investment tax credit and a production tax credit – that is, “double-dipping” – under the American Reinvestment and Recovery Act.

Other actions include four lawsuits against the Interior Department by the Alliance, Public Employees for Environmental Responsibility, Cetacean Society International, and Three Bays Preservation for violations of the Endangered Species Act, National Environmental Policy Act, Outer Continental Shelf Lands Act and other laws with Wal-Mart filing as an intervener.

The Cape Wind project still needs approvals from various agencies including the EPA and Army Corps of Engineers.