(and a consolidated case
).Suffolk. Barnstable. February 11, 2010. - August 31, 2010.Present: Marshall, C.J., Ireland, Spina, Cordy, Botsford, &Gants, JJ.Energy Facilities Siting Board. Administrative Law, Agency'sauthority, Primary jurisdiction, Substantial evidence,Record, Findings, Regulations. Public Utilities, Electricaltransmission line, Electric company. Trust, Public trust.Jurisdiction, Administrative matter. Electric Company.Municipal Corporations, Electric lines. Environment,Environmental impact report. Department of EnvironmentalProtection.
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Lindsey Counsell, Susan Nickerson, Hank Walcott, ChristyMihos, Patty Dineen, Barbara Cambal, Martha Powers, Robert M.Bussiere, Cathleen Bussiere, Doris Rodensky, Robert EdgarBowdoin, Sandy Taylor, Ed Barrett, Roberta Murphy, TheodoreZambellis, Dorothy Robinson, town of Barnstable (Barnstable), andCape Cod Commission (commission).
2
Department of Environmental Protection (DEP) and Cape WindAssociates, LLC (Cape Wind); Conservation Law Foundation andClean Power Now, Inc., interveners.
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We acknowledge the amicus briefs filed by the towns ofAquinnah, Edgartown, Chilmark, and West Tisbury; the Martha'sVineyard Commission; and Boston Gas Company, Colonial GasCompany, Essex Gas Company, Massachusetts Electric Company,Nantucket Electric Company, and New England Power Company.
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Town of Barnstable & another vs. Energy FacilitiesSiting Board (siting board) & another.Civil actions commenced in the Supreme Judicial Court forthe county of Suffolk on June 16 and 22, 2009.After consolidation, the case was reported by Botsford, J.Civil action commenced in the Superior Court Department onApril 9, 2008.Motions to dismiss were heard by Robert C. Rufo, J.
2 The Supreme Judicial Court granted a request for directappellate review.Eric W. Wodlinger (Gareth I. Orsmond with him) for Cape CodCommission.Douglas H. Wilkins (Nina L. Pickering Cook with him) forAlliance to Protect Nantucket Sound & others.Charles S. McLaughlin, Jr., for town of Barnstable.Kenneth W. Salinger, Assistant Attorney General (AnnapurnaBalakrishna, Assistant Attorney General, with him) for EnergyFacilities Siting Board & another.David S. Rosenzweig (Erika J. Hafner with him) for Cape WindAssociates, LLC.Shanna M. Cleveland, for Conservation Law Foundation,intervener, submitted a brief.Matthew F. Pawa & Mark R. Rielly, for Clean Power Now, Inc.,intervener, submitted a brief.The following submitted briefs for amici curiae:Ronald H. Rappaport & Michael A. Goldsmith for town ofAquinnah & others.Mark J. Lanza for Martha's Vineyard Commission.Patricia Crowe & Brooke Skulley for Boston Gas Company &others.BOTSFORD, J. In 2005, the Energy Facilities Siting Board(siting board), acting pursuant to G. L. c. 164, § 69J (§ 69J),approved the petition of Cape Wind Associates, LLC (Cape Wind),to build and operate two 115 kilovolt underground and underseaelectric transmission cables or lines (transmission project, ortransmission lines) that would connect Cape Wind's proposedoffshore wind-powered energy generating facility (wind farm) tothe regional electric power grid. This court affirmed the sitingboard's decision. Alliance to Protect Nantucket Sound, Inc. v.Energy Facilities Siting Bd., 448 Mass. 45, 56 (2006) (AllianceI). Actual construction of the transmission lines, however,requires additional permits, licenses, and approvals from a
3number of different State and local authorities.In 2007, the Cape Cod Commission (commission) denied CapeWind's proposed development of regional impact (DRI); approval ofthe DRI by the commission was one of the required "approvals" forthe transmission project. Soon thereafter, Cape Wind applied tothe siting board pursuant to G. L. c. 164, § 69K (§ 69K), for a"certificate of environmental impact and public interest"(certificate, or § 69K certificate) that would constitute a"composite" of the "individual permits, approvals orauthorizations which would otherwise be necessary for theconstruction and operation" of the transmission project. Id.After conducting an adjudicatory proceeding, the siting boardgranted the requested certificate in May, 2009. Three of theinterveners in the certificate proceeding appeal from the sitingboard's decision pursuant to G. L. c. 164, § 69P, and G. L.c. 25, § 5: the Alliance to Protect Nantucket Sound (Alliance),the commission, and the town of Barnstable (Barnstable)(collectively, petitioners). They seek reversal of the decision,and also request that we declare invalid a regulation of theDepartment of Environmental Protection (DEP). We affirm thedecision of the siting board and conclude that the challengedregulation is valid.Background.Cape Wind plans to construct a wind farm
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The background information is taken from theadministrative record of the siting board's proceeding toconsider Cape Wind's petition and application for a "certificateof environmental impact and public interest" (certificate, or
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SJC Ruling on Cape Wind 8 31 10(2)
The Massachusetts Supreme Judicial Court gave the Cape Wind project approval to start construction.
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