Federal appeals court sends Cape Wind case back to the lower court

A three-judge panel at the U.S. First Circuit Court of Appeals on May 18 sent certain issues related to the much-litigated Cape Wind offshore power project back to the U.S. District Court level for further consideration.

The appeal decided May 18 arose from the latest in a series of lawsuits by opponents of a proposed offshore wind power generation facility in Nantucket Sound. Plaintiffs that include the Town of Barnstable, the Alliance to Protect Nantucket Sound, and businesses and individuals residing near the proposed facility, sought an injunction and a declaratory judgment in federal district court against officials of the Massachusetts Department of Public Utilities (DPU) and the Massachusetts Department of Energy Resources (DOER) (together, the “state defendants”), and two private parties, Cape Wind Associates LLC and NSTAR Electric Co., whose contract to buy wind power DPU approved. The district court granted defendants’ motions to dismiss after determining that the Eleventh Amendment precluded the assertion of federal court jurisdiction.

“For the reasons explained below, we disagree that the Eleventh Amendment bars the assertion of federal court jurisdiction over plaintiffs’ claims, and we remand for resolution of the case’s status and the possible need to resolve a litany of other issues concerning the viability of the complaint,” said the May 18 ruling.

Cape Wind has pursued development of offshore wind power in Nantucket Sound since at least 2001. The company has faced a series of challenges against its attempts to acquire the necessary permits and approvals for a planned 130-turbine, twenty-five square mile facility in the Sound.

The appeals court in the May 18 ruling said it won’t address some of the underlying issues in this matter. “We simply hold that: the district court erred in concluding that plaintiffs’ claims fall outside the Ex parte Young exception to the Eleventh Amendment; and that the case is now neither moot nor unripe. We therefore vacate the judgment of dismissal, and remand this case to the district court for actions consistent with this opinion.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.