Cape Wind is the 130-turbine windfarm planned for acreage in Nantucket Sound.
The brief for the appeal, filed with the US Court of Appeals and authored in part by constitutional law expert Laurence Tribe, states that the court decision was “gravely flawed.”
The brief argues that U.S. District Court Judge Richard Stearns seriously misinterpreted the Constitution’s Eleventh Amendment in dismissing the case by the Alliance to Protect Nantucket Sound, the Town of Barnstable and a group of local businesses and residents, according to Alliance spokeswoman Audra Parker.
“Plaintiffs have clearly established an ongoing violation of federal law,” the brief states, particularly as it relates to the Supremacy Clause and the Dormant Commerce Clause.
The brief argues that Massachusetts officials acted illegally in two key areas in their efforts to help Cape Wind.
First, Massachusetts illegally used its regulatory power to shield Cape Wind from out-of-state competitors that offer much cheaper power. Second, the brief argues that the state – in particular the Department of Energy Resources and the Department of Public Utilities – acted illegally in their attempts to coerce NSTAR to purchase Cape Wind power at above market rates in exchange for approving the utility’s merger with Northeast Utilities.
“[The Department of Energy Resources] … saw NSTAR’s merger application as an opportunity to accomplish through backroom strong-arming what Massachusetts was not lawfully permitted to do openly and directly: to compel NSTAR to enter a contract procuring electricity from Cape Wind at a price high enough to allow Cape Wind to build,” according to the brief.
Tribe, a University Professor at Harvard and a Professor of Constitutional Law at Harvard, is working on the appeal with lawyers from Massey & Gail, Jenner & Block and Lawson & Weitzen.
“The opinion of the district court relied on and quoted what my treatise on the Constitution had said about the Eleventh Amendment to reach a conclusion that neither I nor, much more importantly, the U.S. Supreme Court, would agree with – a conclusion that would make that relatively narrow constitutional provision a veritable engine of destruction for otherwise valid constitutional challenges to state laws, policies, and actions,” said Tribe.
“We have a very strong case that shows NSTAR was coerced into buying Cape Wind power in a way that violates federal law, discriminates against affordable green power producers, and burdens small businesses and municipalities with unnecessarily high electricity costs,” said Audra Parker, President and CEO of the Alliance. “This brief paints a troubling picture of the state’s actions and its ongoing efforts favoring Cape Wind, which harm consumers and close the door on other, more viable green energy options.”
Professor Tribe served as the first Senior Advisor for Access to Justice for Attorney General Holder in the Obama Administration. President Obama is a former student and research assistant of the professor. Professor Tribe also argued the first of the two Bush v. Gore Supreme Court cases for former Vice President Al Gore in the disputed 2000 presidential election, and has argued dozens of other major cases in the Supreme Court.