Alliance To Appeal Latest Cape Wind Court Victory

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The Alliance to Protect Nantucket Sound announced this morning that it would be appealing a recent court decision favoring the Cape Wind project to erect a wind farm in Nantucket Sound.

In a 21-page ruling, Judge Richard G. Stearns of the US District Court on Friday dismissed a lawsuit challenging Cape Wind’s Power Purchase Agreement with NSTAR.

The Town of Barnstable joined the Alliance in bringing the lawsuit against Cape Wind, as did Hyannis Marina Inc., Marjon Print and Frame Shop Ltd. and Jamie Regan, among others.

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In announcing the appeal, Alliance spokesman Audra Parker stated, “The ruling is based on a legal technicality that does not address our claim that state regulators acted illegally.

“The state’s action forcing NSTAR to purchase Cape Wind power at more than three times the price of competing green energy producers is a clear violation of federal law and one that puts an unfair financial burden on consumers.”

She continued, “The NSTAR-Cape Wind contract is unconstitutional, and we plan to appeal this ruling on behalf of Massachusetts’ businesses and consumers who would be forced to pay nearly one billion in additional electricity costs to cover the exorbitant costs of this deal.”

In his ruling to dismiss the lawsuit, Judge Stearns states that the lawsuit would violate the 11th Amendment to the Constitution that gives states immunity from being sued for past actions in Federal Court.

He also rejected the premise of the lawsuit, stating, “The allegation that DPU dictated that NSTAR procure power from Cape Wind at a specified price is misleading and ultimately untrue.”

The judge took the opportunity in his decision to comment on the 10-year legal battle to stop Cape Wind. “The Complaint is the latest chapter in a long-running saga involving the siting of a wind farm in Nantucket Sound,” he wrote, categorizing the opponents as “an obdurate band of aggrieved residents.”

He also noted that “while both sides claim the mantle of environmentalism,” on this case the plaintiffs “have doffed their green garb and draped themselves in the banner of free-market economics.”

Cape Wind President Jim Gordon said this most recent legal victory will bring further momentum to the task of securing the needed financing for the project. Cape Wind spokesman Mark Rodgers said the remaining financing is expected to be secured later this year.

The case is among 30 lawsuits filed to block the project since it first applied for permits in 2001.

Judge Stearns wrote that if he were not wearing judicial robes and instead wore the hat of environmentalist John Muir or economist Milton Friedman, “I might well have concluded that the Cape Wind project should have been built elsewhere (or not built at all)—or that the NSTAR-Cape Wind contract should never have been approved.”

But, he wrote, given that the project has been reviewed by multiple agencies and received numerous approvals, “There comes a point at which the right to litigate becomes a vexatious abuse of the democratic process.” For that reason, he stated, he issued his decision as swiftly as possible