Posted on 08/31/2002 12:49:26 PM PDT by Leisler
An alliance of environmental groups sues the Army Corps of Engineers over its decision to allow a 197-foot structure for data collection.
BOSTON - Opponents of the proposed Nantucket Sound wind farm filed a lawsuit in federal court yesterday to block construction of a data-collection tower, which the U.S. Army Corps of Engineers approved last week.
In court documents filed with the U.S. District Court in Boston, the Alliance to Protect Nantucket Sound and other wind farm opponents claimed the Army Corps exceeded its authority in issuing the permit for the tower.
On Aug. 19, the Army Corps approved a permit allowing Cape Wind Associates to erect a 197-foot tall tower to collect meteorological and oceanographic data to be used for the wind farm. It was the latest step in Cape Wind's bid to build the massive $500 million to $700 million wind farm on a 28-square-mile section of Nantucket Sound.
The Army Corps determined last year that the data tower was a separate project from the much larger, 170-turbine wind farm that Cape Wind has proposed for the Horseshoe Shoal area. Federal and state agencies concluded the data tower would pose no threats to the marine environment or birds.
The larger wind farm proposal is now going through its own lengthy environmental review process. But opponents see the battle over the data-collection tower as part of the overall fight against the wind farm proposal. In a statement released yesterday, Isaac Rosen, executive director of Cape-based alliance, slammed the Army Corps' decision to issue the permit. "This data rig is a Trojan Horse. If the data-gathering rig is allowed to be built, the private developer will no doubt claim the precedent has been set for the entire project," Rosen said.
Rosen said the alliance is not against "legitimate environmental research. We are not against exploring new and clean energy sources. "But we are against private development that threatens the environment, despoils the scenic beauty of a state and federally designated marine protected area, and gives away federal lands."
It could not be determined what state or federal protections Rosen referred to, since the area is specifically outside the state's ocean sanctuary boundaries and there is no known federal designation of Nantucket Sound as a "marine protected area," according to Teri Frady, spokeswoman for the National Marine Fisheries Service.
Alliance attorneys, however, maintain that such a designation does exist.
No one from the U.S. Attorney's office in Boston, which will represent the Army Corps in the lawsuit, would comment on the case.
Cape Wind confident
But James Gordon, president of Cape Wind Associates, said he was confident that the permit would not be revoked as a result of the suit. "I am confident the Army Corps' procedures will be upheld," Gordon said yesterday.
Noting the lengthy reviews of the data tower, and state and federal determination of no adverse impact, Gordon said he wondered why "this so-called alliance would block the gathering of scientific data, needed to answer some of the legitimate concerns they have raised, as well as to respond to the ongoing scope of inquiry into the wind park's federal and state environmental impact statement.
"Surely the head of the alliance, (Douglas Yearley), former CEO of uranium and copper smelting Phelps Dodge, can understand the need to gather scientific data," Gordon noted.
He said he "could only conclude" that the alliance believes a fair review will show that the wind farm "will produce significant public benefit in terms of a cleaner environment, lower energy costs and increased energy security and independence."
The alliance has long argued that no permit for use of federal lands and waters should be issued until the government established regulations on that use, and how the public would be compensated for the private, for-profit use of public property.
Unlike existing regulations for off-shore oil and gas development, there are no federal rules governing renewable energy projects in the outer continental shelf, extending out 200-miles from shore. Legislation is now pending in Congress which would establish such regulations.
In its suit, the alliance charged that because the Corps knew Cape Wind had no property interest in or ownership of the sea floor, since no authority exists to grant such ownership, the Corps improperly issued the permit. Carol Lee Rawn, an attorney with the Boston-based Conservation Law Foundation, said the issue of ocean zoning - how federal lands are used, where development should occur, and where it should not - "is an issue that is very important and should be addressed." But she said CLF did not feel it appropriate to delay development of renewable energy options "until a new regulatory regime comes into place.
"In light of public health and environmental adverse effects from fossil fuel power plants, it is critical we start moving forward on wind, making it a viable part of our energy portfolio," she said.
Public notice at issue
In its third claim, wind farm opponents say the Corps violated various federal regulations requiring public notice of its environmental assessment, and its "finding of no significant impact" for the data tower.
But Army Corps spokesman Tim Dugan said they extended public comment on the tower for five months and held two public hearings on the issue, which he said satisfied public notice. And he noted that permitting a single, temporary tower is not a precedent-setting action, but something that is done almost routinely.
These kinds of lawsuits are not unexpected, said Becky Dobyns, a public affairs official at the Corps headquarters in Washington, D.C.
For example, she said there are currently 150 active cases against the Corps involving regulatory permits it has issued nationwide.
"Because the Corps' regulatory program tries to balance the interests of the environment as well as economic development, it's a controversial program.
"And with that kind of controversial program, it is not unusual to have lawsuits filed," she said. The Conservation Law Foundation's Rawn also said this filing is not unusual. Groups often turn to the courts to try and stop projects they are opposed to, she said. In the past, the foundation has used the courts to force action, as in the case of the Boston Harbor cleanup suit, or to block action, as in its efforts to stop exploratory oil and gas drilling on Georges Bank. The foundation has publicly supported the data tower as an important information gathering tool to help determine the best locations for wind energy development.
Because of that, Rawn said it was possible the Conservation Law Foundation could file a friend of the court brief, supporting the Corps issuance of the permit. "We feel that it's critical that we determine where wind farms should be sited, and the only way to determine that is to go through the environmental review process, and this (suit) blocks an important source of information for that review," Rawn said.
While it is an enthusiastic supporter of wind power, CLF has withheld support of Cape Wind's proposal until it has completed all the state and federal environmental reviews.
In the filing, the alliance, with co-plaintiffs Ronald Borjeson, a commercial fisherman from Sandwich, Wayne Kurker, founder of the alliance and owner of Hyannis Marina, and Shareen Davis and Ernest Eldredge, of Chatham, co-owners of Monomoy Trap Company, have asked the court to declare the data tower permit invalid, to order the Corps to revoke the permit, and complete environmental reviews before taking any other action.
Yes indeedy. But it's the Kettle Ho.
Even though they pose as pro-environment, they really aren't. They are ANTI-HUMAN.
Oh that's a dandy idea. Especially since there appears to be significant overlap of greens with cycle-nazis. They probably won't like the name "enviro-weenie farm" though. Something more flattering like "Green Power Project" may work though.
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