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Cape Wind sued for violating Endangered Species Act

MARTHA'S VINEYARD, Mass. – A renewable energy advocacy group from California and conservation groups from as far away as Texas have partnered with the Alliance to Save Nantucket Sound in a district court lawsuit against the federal agencies that approved the industrial Cape Wind energy factory in Nantucket Sound, an area sacred to the Wampanoag people.

The lawsuit filed June 25 by the Alliance and its partners names as defendants the newly appointed Michael Bromwich, director of the newly-named U.S. Bureau of Ocean Energy Management (until recently known as the Minerals Management Service), Ken Salazar, secretary of the Interior Department, and Rowan Gould, acting director of U.S. Fish and Wildlife Service.

The lawsuit charges that in their rush to approve the 25-square-mile wind energy plant, which would be the country’s first offshore wind power plant, the officials violated federal environmental and wildlife protection laws, failed to conduct the required scientific studies, and ignored mandated protective measures.

The Obama administration has promoted the Cape Wind project as a model of renewable energy power in promoting its vision of the eastern seaboard dotted with similar offshore wind factories.

Salazar approved the Cape Wind project in late April. Proposed to be built in public waters triangulated by Cape Cod, Nantucket, and Martha’s Vineyard, Cape Wind includes 130 wind turbine generators towering 440 feet above water level across 25 square miles of the sound; a 66.5-mile buried submarine transmission cable system; an electric service platform with 40,000 gallons of oil; a helicopter landing pad; and two 115-kilovolt lines crossing 25 miles to the mainland power grid.

The approval was given despite a massive outpouring of objections from environmental groups, local towns, local and federal officials and the Aquinnah and Mashpee Wampanoags nations – the People of the First Light. Cape Wind’s towering turbine would obscure their view of the rising sun in ceremony and destroy the ocean bed, which was once dry land where their ancestors lived and died.

The lawsuit filed today in federal district court in Washington, D.C. contends that MMS and FWS violated the Endangered Species Act, Migratory Bird Treaty Act, and National Environmental Policy Act by approving Cape Wind.

Plaintiffs include Public employees for Environmetnal Responsibility, Cetacean Society International, Lower Laguna Madre Foundation, Californians for Renewable Energy, Three bays Preservation and the Alliance to Protect Nantucket Sound, as well as individuals Cindy Lowry, Barbara Durkin and Martha Powers. They are represented by the Washington, D.C. public interest law firm Meyer Glitzenstein & Crystal.

While the Aquinnah Wampanoag Nation is a member of the Alliance, it had hoped to file a separate lawsuit, said Chairwoman Cheryl Andrews-Maltais.

“We have real standing in this issue. We know our claims are significant and have merit, however, the financial and potential political costs have not afforded us much in the way of any further pro-bono representation. We know that good legal representation costs money, and while we have plenty of heart, commitment and grounds for a potential win, based upon the merits of our claims; we simply don’t have the money to pay for it.

“So, unfortunately, once again, ‘he with the most money’ may prevail and not the one with the most viable claims, the most at stake and the most to lose. Big business, big money, political favors and favoritism may win the day. But all of us in this – the Cape Cod and Islands region – will lose.”

Among the lawsuit’s specific issues are:

  • The refusal to adopt recommended protective measures for the endangered Roseate Tern and the threatened Piping Plover, such as shutting turbines down during peak migration periods;
  • The refusal to collect or submit acoustic, radar, infrared, or observational data on bird migration; and

  • The failure to prepare a supplemental environmental impact statement when new information came to light that a large aggregation of the highly imperiled North Atlantic Right Whale was present in the project area.

The Alliance has also filed an Administrative Procedures Act appeal against the Federal Aviation Administration’s ruling in favor of Cape Wind.

‘The FAA, having first issued a finding of ‘presumed hazard’ and acknowledged there would be radar interference and serious safety concerns from the turbines, then miraculously issued a determination of no hazards, so the Alliance and the Town of Barnstable, which owns and operates the municipal airport, filed a petition challenging the FAA’s determination of no hazards,” said Audra Parker, president and CEO of the Alliance.

The approval included mitigation costs of more than $15 million from Cape Wind.

“The FAA had as one means of mitigation an unproven technical fix which required a $15 million upgrade to a radar system, but they said if that didn’t work – thereby acknowledging that it’s an unproven fix – they’ll put the burden on pilots and traffic and everyone who uses Nantucket Sound,” Parker said. “They’ll reroute some of the 400,000 flights a year, so they’d have to use more fuel and create more noise for the communities to circumnavigate the 25 square miles to accommodate the developer and his private profit at any cost to the rate payers, the tribe’s culture, and public safety.”