Archive for the ‘FAA’ Category

Cape Wind Gets FAA Approval, Again.

The Cape Wind turbines won’t be this close. Photo by Morten A. Mitchell Larød, some rights reserved.

The FAA announced Wednesday that the 130-turbine Cape Wind project off the Massachusetts coast posed no danger to air travel. The FAA’s approval means that Cape Wind is fully permitted, with federal and state approval, a commercial lease and construction and operations plans, and power purchase agreements with utilities in Massachusetts – the only offshore wind farm so close to construction. Massachusetts, then, is about to add to its fast-growing use of renewables.

The approval does not come without controversy, however. Republican lawmakers want to investigate the possibility that the Obama administration put pressure on the agency to approve the project despite safety concerns. Even with that threat looming, the project is the subject of numerous legal challenges.

Last year, the Alliance to Protect Nantucket Sound challenged the FAA’s previous approval of the project, and the DC Circuit overturned that approval, ordering the agency to review its findings. Cape Wind must also set aside $15 million to address any issues with the radar systems used to locate aircraft in the area, but because the turbines, at 440 feet, are below a 500-foot threshold, the FAA does not expect them to obstruct pilots. Boston.com has the story here.

For those of us who might have been following this story since the George W. Bush administration, this storyline might sound familiar. That’s because this is actually the FAA’s fourth no-hazard determination, an approval that must be reviewed if construction does not begin within 18 months. Maybe the fourth time is the charm on the high seas of Nantucket Sound.

Spooky, Scary Controversy Around Cape Wind

Photo by Martin Pettitt. Some rights reserved.

On Halloween, the folks over at Pillsbury law weren’t too busy trick-or-treating to publish their analysis of a recent decision from the DC Circuit that vacated “crucial” FAA Determinations for the Cape Wind project.

Cape Wind aims to create America’s first offshore wind farm on Horseshoe Shoal in Nantucket Sound, and the project was moving forward based on Determinations of No Hazard issued by the Federal Aviation Administration, as required by federal regulations (49 U.S.C. § 44718(b)).

But petitioners Alliance to Protect Nantucket Sound and the town of Barnstable, Massachusetts, long looking for a way to block the project, challenged the determinations, arguing that “the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation.”

And, luckily for them, the Court agreed:

We find that petitioners do have standing and that the FAA did misread its regulations, leaving the challenged determinations inadequately justified.

So, what does it all mean? Pillsbury concludes their client alert on the decision with the following:

This decision gives significant weight to the FAA’s own internal guidance, even though the FAA argued that the handbook “largely consists of criteria rather than rules to follow.” Although the court agreed with the FAA on the point, it nevertheless noted that “any sensible reading of the handbook. . .would indicate that there is more than one way in which the wind farm can pose a hazard” and faulted the FAA for abandoning its own established procedure and catapulting “over the real issues and analytical work required by its handbook.”
(ed. The handbook they are referring to can be found here.)

The decision is also noteworthy in that it reflects the trend towards states, local governments, and other entities imposing requirements that condition approval or agreements on valid FAA DNHs, thereby effectively giving the determinations legal effect.

Does the decision spell the end of Cape Wind? Hardly. Shortly after it was issued, Cape Wind released a statement that read, in part:

The essence of today’s court ruling is that the FAA needs to better explain its Determination of No Hazard. We are confident that after the FAA does this, that their decision will stand and we do not foresee any impact on the project’s schedule in moving forward.

Though I’m sure Alliance to Protect Nantucket Sound won’t make it easy. With all its controversy, tensions surrounding the Cape Wind project probably make it a little scary! I guess analysis of the decision was an appropriate Halloween activity after all.

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