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Iva ia*
Abstract: This Note analyzes administrative and judicial challenges to Cape
Wind, a 180-turbine offshore wind farm proposed for construction in federal
waters close to Massachusetts Cape Cod and the islands of Martha's
Vineyard and Nantucket. It examines the opposition to Cape Wind through
the lens of adversarial legalism, a term coined by Professor Robert Kagan
to describe the uniquely American adversarial style of implementing
regulations and resolving disputes. This Note outlines the extensive
permitting processes surrounding Cape Wind. It analyzes the impact of the
delay in permitting on environmental justice efforts, and its contribution to
our inability to fully ameliorate negative consequences of global warming.
This Note suggests that the courts, when faced with special interest
opposition to renewable energy projects that have received administrative
approvals, should show high deference to agency decisions on renewable
energy projects.

The United States Department of Energy reports that, despite the
development and utilization of renewable energy resources such as solar or
nuclear power, 85% of energy needs in our country are currently met with
fossil fuels in the form of coal, oil, and natural gas.1 Fossil fuels provide
nearly two-thirds of the countrys electricity and comprise almost all of the
transportation fuels used.2 Yet, very few issues are as prominent and as

* Candidate for Juris Doctor, New England School of Law (2008); B.A., Philosophy
and History of Mathematics and Science, St. John's College (2001).
1. United States Department of Energy: Fossil Fuels,
energysources/fossilfuels.htm (last visited Apr. 19, 2008).
2. Id.

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consistent in current national and international public debates as the

problem of global warming, which happens to be a direct result of our
increasing consumption of those fossil fuels.3 Power plants, vehicles, and
other fossil-fuel burners emit greenhouse gases, such as carbon-dioxide and
methane, whose accumulation in the atmosphere leads to numerous
environmental problemsthe greatest being global warming and the
consequent climate change.4 Climate scientists believe that climate change
is likely to lead to the spread of tropical diseases, water shortages, and
starvation.5 Some of the problems linked to global warming are already
with us todaychange in species habits and habitats, more acidified
oceans, loss of wetlands, bleaching of coral reefs and increases in allergy-
inducing pollen.6

3. A British government report recently suggested that the failure to act on global
warming within a decade could cost our society $6.98 trillion by the end of the century.
Andrew C. Revkin, British Government Calls for Broad Effort on Climate Issues, N.Y.
TIMES, Oct. 30, 2006, at A15, available at 2006 WLNR 18796035. Mainstream media has
been reporting on topics like energy conservation and resource protection with increasing
frequency. See, e.g., Jerry Adler, Going Green: With Windmills, Low-Energy Homes, New
Forms of Recycling and Fuel-Efficient Cars, Americans Are Taking Conservation into Their
Own Hands, NEWSWEEK, July 17, 2006, at 42, available at
45856. An Inconvenient Truth, a documentary film about former Vice President Al Gores
series of lectures on global warming, met with great success at box-offices nationwide. See
Karen Tumulty, Lights, Camera, Al Gore!, TIME, June 5, 2006, at 24, available at,9171,1198888,00.html; see also AN
INCONVENIENT TRUTH (Paramount Pictures 2006).
POLICYMAKERS 5-9 (2007) [hereinafter IPCC REPORT], available at http:// (arguing that
the emissions of carbon-dioxide due to human activities have contributed to and will further
lead to decreased snow and ice caps, increased risks of draughts, floods, monsoons, and an
increase in sea levels worldwide). IPCC is a United Nations network of over 2,000
international scientists. Scientists Urge Global Action on Clean Energy, N.Y. TIMES, Feb.
28, 2007, at A8, available at 2007 WLNR 3825603; see also Anthony Mitchell, Expert Says
Oceans Are Turning Acidic, WASH. POST, Nov. 10, 2006, available at
l; Jeff Barnard, Persistent Dead Zone off Oregon Coast Linked to Global Warming, USA
TODAY, Oct. 31, 2006,
deadzone_x.htm. Many members of the scientific community also believe that warmer
weather is responsible for stronger hurricanes, like Hurricane Katrina that hit Louisiana and
Mississippi in the summer of 2005. Bret Schulte, A Storm over Warming: Are Hurricanes
Linked to Global Warming?, U.S. NEWS & WORLD REP., Sept. 5, 2006, at 49, available at
5. Top Scientists Warn of Water Shortages and Disease Linked to Global Warming,
N.Y. TIMES, Mar. 12, 2007, at A11, available at 2007 WLNR 4628123.
6. Id.
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In addition to global warming, the burning of fossil fuels leads to

deterioration in air quality,7 oil spills present a threat to oceans and
beaches,8 and a continuous need to tap new oil reserves worldwide that
threatens some of the planets most pristine and important ecosystems.9
The United States energy needs present not only an environmental
problem, but also a national security risk.10 In his 2006 State of the Union
address, President George W. Bush stated that the country is addicted to
foreign oil, prompting the government to invest over $10 billion into
renewable energy research to help solve the countrys heavy reliance on
fossil fuels.11 The President at the same time underscored the difficulty of
buying oil from politically hostile parts of the world.12 In his 2007 State of
the Union address, he repeated his concerns over oil and went so far as to
directly utter the phrase climate change.13 However, while individual
states, together or on their own, have taken the initiative to cut greenhouse
gas emissions,14 the federal government has so far chosen to rely

7. See generally Samantha Levine, Trouble in the Air, U.S. NEWS & WORLD REP., Apr.
19, 2004, at 37, available at
8. See United States Environmental Protection Agency, Oil Spills, (last visited Apr. 19, 2008) (discussing methods of
EPA prevention and protection).
9. For example, the Arctic National Wildlife Refuge in Alaska has been subject to
Congressional debates for decades, due to the attempts by the fossil fuel industry to open the
refuge to gas and oil development. See generally U.S. FISH AND WILDLIFE SERV., POTENTIAL
arctic_oilandgas_impact.pdf (last visited Apr. 19, 2008). The Refuge is Americas finest
example of an intact, naturally functioning community of arctic/subarctic ecosystems. Id. at
5. The political pressure on the refuge stems from the fact that, according to estimates, it
contains close to two billion barrels of oil. See id. at 4-5.
10. See George W. Bush, President of the U.S., Remarks at the National Renewable
Energy Conference in St. Louis, Missouri, 42 WKLY. COMP. OF PRES. DOC. 1802 (Oct. 12,
2006), available at (follow Missouri,
National Renewable Energy Conference in St. Louis).
11. See George W. Bush, President of the U.S., State of the Union Address by the
President, 42 WKLY. COMP. OF PRES. DOC. 145, 150 (Jan. 31, 2006), available at (follow State of the Union).
12. See id.
13. See George W. Bush, President of the U.S., State of the Union Address by the
President, 43 WKLY. COMP. OF PRES. DOC. 57, 59-60 (Jan. 23, 2007), available at (follow State of the Union) (America is
on the verge of technological breakthroughs that will enable us to live our lives less
dependent on oil. And these technologies will help us be better stewards of the environment,
and they will help us to confront the serious challenge of global climate change.).
14. See Gov. Arnold Schwarzenegger, Exec. Order S-01-07 (Jan. 18, 2007), available at
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exclusively on the eventual development of alternative technologies,

avoiding setting concrete limits on greenhouse gas emissions.15
In Massachusetts, energy demands are predicted to outstrip the
capacity to meet them by 2013.16 Natural gas currently satisfies
approximately 40% of the states energy needs, and the Commonwealth
will most likely need another eight power plants by 2015.17 Yet, despite the
fact that its energy prices are among the highest in the country,18 and its air
quality among the worst,19 Massachusetts is home to a great controversy
surrounding the construction of what would be the nations first offshore
wind farm. 20 Cape Wind Energy Project (Cape Wind) would consist of
130 wind turbines, would reduce greenhouse gas emission by 734,000 tons
of carbon-dioxide per year, and would be located in Nantucket Sound, 21 a
patch of ocean surrounded by popular vacation spots: Cape Cod, Marthas
Vineyard, and Nantucket. Overall, Cape Wind would produce up to 420
megawatts of clean, renewable energy.22
However, its siting has been an uphill battle. The driving force behind
the opposition to Cape Wind is the Alliance to Protect Nantucket Sound
(The Alliance), a non-profit organization formed in 2001 to prevent the; Press Release, Executive

Dept of the Commonwealth of Massachusetts, Governor Patrick Signs Regional Pact to
Reduce Greenhouse Gas Emissions (Jan. 18, 2007), available at
15. See Ned Potter, White House Promises to Cut Gasoline Use; Environmentalists
Unimpressed, ABC NEWS, Jan. 23, 2007,
story?id=2817751&page=1; see also Edmund L. Andrews, Bush Makes a Pitch for Amber
Waves of Homegrown Fuel, N.Y. TIMES, Feb. 23, 2007, at A16, available at 2007 WLNR
16. Glen Johnson, Governor Unveils Plan to Reduce Energy Demand: Alternate Power
Would Raise Supply, BOSTON GLOBE, Aug. 12, 2006, available at
17. Peter J. Howe, Report: 8 More Power Plants Needed, BOSTON GLOBE, Oct. 28,
2006, at 11C, available at 2006 WLNR 19114913.
18. Beth Daley, Next Governor Must Face Difficult Energy Challenge, BOSTON GLOBE,
Aug. 20, 2006, at A1, available at 2006 WLNR 14467022.
19. See Scorecard, Pollution Locator: Hazardous Air Pollutants: State Report, (last visited Apr.
19, 2008) (ranking Massachusetts among the dirtiest, or worst, states in terms of health risks
from hazardous air pollutants).
20. See Carolyn S. Kaplan, Congress, the Courts, and the Army Corps: Siting the First
Offshore Wind Farm in the United States, 31 B.C. ENVTL. AFF. L. REV. 177, 177 (2004)
(referring to the intense legal controversy that has emerged in response to the project).
21. Cape Wind: Project at a Glance, (last visited Apr.
19, 2008).
22. See id.
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siting of the farm.23 According to Cape Winds Vice President, the

protracted legal battles with the Alliance, and subsequent delays in
obtaining the necessary funding, have been the primary reasons why the
construction of the farm, which was supposed to begin by 2005, has not yet
commenced.24 The Alliance has enjoyed the support of Massachusetts
Senator Edward Ted Kennedy, who at one point unsuccessfully
attempted to establish gubernatorial veto power over the project in the
United States Congress.25 The Alliances list of supporters also includes
former Massachusetts Governor Mitt Romney, former Attorney General
Tom Reilly, Congressman William Delahunt, and various groups and
municipalities.26 The group has raised significant funds to fight Cape Wind
both in the press and in the courts.27 The battle over the farm figured
prominently in local and state gubernatorial elections in November 2006,
where the victorious Democratic candidate Deval Patrick favored the
project, while Republican Kerry Healey, a Lieutenant Governor under
Romney, opposed it.28 In general, the debate over Cape Wind has been
characterized by a strong push to assert state jurisdiction over the project,
hoping that the Massachusetts leadership, at least under Romney, would
keep the project out of Nantucket Sound.29
While the Alliance is fighting to stop the wind farm in order to protect
Nantucket Sound, allegedly for environmental and economic reasons,30 a

23. See Alliance to Protect Nantucket Sound: About Us: Our Position, (last visited
May 8, 2008).
24. Telephone Interview with Dennis Duffy, Vice President, Energy Mgmt. Inc., in
Boston, Mass. (Jan. 23, 2006) [hereinafter Duffy Interview].
25. Michael Jonas, Kennedys Wind Farm Move Yields Local Heat, BOSTON GLOBE,
May 28, 2006, at City Weekly 6, available at 2006 WLNR 9359838.
26. Nick Blenkey, Was Bobby Kennedy on the Wrong Boat?, MARINE LOG, Oct., 2005,
at 4, available at 2005 WLNR 18419390.
27. The Alliances funds range in millions of dollars. See Jay Fitzgerald, Cape Wind
Farm Opponents Blow up $600G Deficit, BOSTON HERALD, Oct. 16, 2004, at 18, available
at 2004 WLNR 1136492.
28. See, e.g., Editorial, Cash for Clean Energy, BOSTON GLOBE, Oct. 23, 2006, at 10A,
available at 2006 WLNR 23400978.
29. See Jonas, supra note 25; see also Ten Taxpayers Citizens Group v. Cape Wind
Assoc., 373 F.3d 183 (1st Cir. 2004) (noting how a local group opposed to Cape Wind
unsuccessfully appealed the district court's failure to remand the case to the state court),
affg 278 F. Supp. 2d 98 (D. Mass. 2003), cert. denied 543 U.S. 1121 (2005).
30. Robert F. Kennedy, Senator Kennedys nephew, a prominent environmental lawyer
and a Cape Wind opponent, articulates some of the arguments against the wind farm, such
as the threat to avian population and local fishing industry. See Robert F. Kennedy, Jr., Op-
Ed., An Ill Wind off Cape Cod, N.Y. TIMES, Dec. 16, 2005, at A41, available at 2005
WLNR 20281168. But see Beth Daley, Audubon Review Supports Wind Farm: Threat to
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far less attractive part of Massachusetts might become the site of a diesel-
fueled power plant.31 Energy Management Ltd., the same energy company
that is behind Cape Wind, has proposed a diesel-powered, 240-megawatt
power plant in Chelsea, a predominantly blue-collar town just outside of
Boston.32 At least one local organization33 is strongly opposed to the power
plant, which would be sited close to a local elementary school.34 Despite
the absence of any direct causal link between the inability to construct
Cape Wind and the need for the Chelsea plant, the impossibility of
constructing a wind-powered facility offshore undoubtedly necessitates the
construction of dirtier power plants elsewhere, simply because the states
energy needs will continue to grow.
The controversy surrounding Cape Wind therefore raises the issues of
environmental justice,35 Not-In-My-Back-Yard (NIMBY) syndrome,36 and
makes us question what is a desirable level of input from the general public
and local residents in the siting of renewable energy facilities.
In Part II, this Note explains the relationship between carbon-dioxide
emissions and climate change caused by global warming. This Note
demonstrates the need for renewable energy facilities, such as Cape Wind,
and describes the environmental record of wind projects. It also addresses
the NIMBY aspects of the struggle surrounding Cape Wind and the
environmental justice issues, which are aggravated by the inability to site
renewable energy projects of Cape Winds magnitude. In Part III, this Note

Birds Is Less than Feared, Group Finds, BOSTON GLOBE, Mar. 29, 2006, at A1, available at
2006 WLNR 5237579.
31. Beth Daley, Diesel Plant Proposed for Chelsea, BOSTON GLOBE, Jul. 3, 2006, at B1,
available at 2006 WLNR 11470534.
32. Id. It is fair to note here that, while still a much dirtier source of power than a wind
farm, the plant proposed for Chelsea would run on low-sulfur fuel and therefore have fairly
low emissions. See Business in Brief, BOSTON GLOBE, Dec. 19, 2006, at 2D, available at
2006 WLNR 23402564.
33. See Katheleen Conti, Plants Foes Aim Anger at City Chief, BOSTON GLOBE, Sept.
14, 2006, at A1, available at 2006 WLNR 16262104. The group mentioned in the article is a
community organization that focuses on the protection of Chelseas environment and green
spaces. See Chelsea Collaborative: Chelsea Green Space and Recreation Comm., (last visited Apr. 19, 2008).
34. See Conti, supra note 33.
35. Environmental justice is a notion that all individuals, regardless of their race,
income, social, or economic status, have the same right to live in communities free of
environmental hazards. See, e.g., U.S. Envtl. Protection Agency: Envtl. Justice, (last visited Apr. 19, 2008); see also EXEC.
ENVIRONMENTAL AFFAIRS 2 (2002) [hereinafter EOEA EJ POLICY], available at
36. See infra notes 84-98 and accompanying text.
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outlines the permitting process behind Cape Wind, and offers an overview
of the judicial battles that have so far accompanied agency actions on Cape
Wind. This Note then presents the Cape Wind controversy from the
adversarial legalism perspectiveemphasizing the problem that emerges
when projects essential and beneficial to the greater public are hindered by
protracted legal battles in courts and administrative agencies. It analyzes
two potential solutions to this problem: 1) restricting court access to
lawsuits that tend to delay renewable energy projects, and 2) relying on the
courts to, pursuant to the Chevron doctrine,37 exercise deference to the
governments permitting and licensing of renewable energy projects when
faced with external attacks on their validity.
Rather than offer a conclusive solution to the siting problems faced by
Cape Wind and similar renewable energy facilities, this Note presents two
effective, yet equally problematic solutions. It suggests that, in light of the
global risks caused by continuing dependence on fossil fuels, it is essential
for the courts to defer to agency decisions when reviewing challenges to
renewable energy projects by special interest groups. Additionally, it
suggests that state and federal legislatures should pass laws granting more
finality to agency determinations thus restricting judicial access for claims
brought to delay or discourage renewable energy projects.
The ultimate goal of this Note, however, is to draw attention to and
invite further debate on the problem presented by administrative delays of
projects that are necessary to avert a potential global crisis.


A. Carbon-Dioxide Emissions and Climate Change

The atmospheric concentration of carbon-dioxide, which is released
by fossil fuel consumption, has been rapidly increasing since the advent of
the Industrial Revolution.38 In the last few years, the most widely debated
consequence of fossil fuel consumption is global warming, an increase of
temperatures worldwide due to the trapping of greenhouse gases in the

37. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984) (establishing a test under which courts exercise deference to agency decisions), revg
685 F.2d 718 (D.C. Cir. 1982).
38. American scientist Charles Keeling was the first to alert the scientific community to
the increasing concentrations of carbon-dioxide in the atmosphere by taking measurements
in Mauna Loa, Hawaii, from 1958 onwards. See Obituary of Charles Keeling, DAILY
TELEGRAPH, June 24, 2005, at 25, available at 2005 WLNR 9977267. The concentration of
carbon-dioxide is currently at roughly 380 parts per million, the highest it has been in at
least 400,000 years. Id.
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Earths atmosphere.39 Global warming in turn causes what is commonly

referred to as climate change.40
Despite some political and media attempts to paint the issue as
inconclusive, the notion that the burning of fossil fuels raises global
temperatures has by now been accepted by the overwhelming majority of
climate scientists worldwide.41 Rising global temperatures have, in turn,
been linked to the melting of permafrost and ice sheets, rapid species
extinction, rise in global sea levels, damage to coral reefs and aquacultures,
heat waves and droughts, and increased hurricane intensities.42
Additionally, the burning of fossil fuels has been linked to lung cancers and
other respiratory problems, both in children and in adults.43 Specifically,
emissions of particulate matter due to the burning of fossil fuels are linked
to a nationwide increase in asthma and allergy instances.44
In West Virginia, Kentucky, Tennessee, and other states, coal
companies use a technique known as mountaintop removal, which
essentially destroys mountain peaks with all their vegetation to collect low-
sulfur coal, forever changing the landscape in these areas.45 The practice
inflicts terrific damage on local communities, wildlife, and local streams
and rivers.46

39. See Andrew C. Revkin, Agency Affirms Human Influence on Climate, N.Y. TIMES,
Jan. 10, 2007, at A16, available at 2007 WLNR 438378.
40. While global warming refers to the temperature rise, climate change encompasses all
the effects of the warming on public health and welfare. See, e.g., Union of Concerned
Scientists, Hurricanes and Climate Change,
/hurricanes-and-climate-change.html (last visited Apr. 19, 2008); see also supra notes 3-6
and accompanying text.
41. See generally IPCC REPORT, supra note 4.
42. Natl Res. Def. Council: Consequences of Global Warming, (last visited Apr. 19, 2008); see also supra
note 5 and accompanying text.
43. See, e.g., Dorothea Sugiri et al., The Influence of Large-Scale Airborne Particle
Decline and Traffic-Related Exposure on Childrens Lung Function, 114 ENVTL. HEALTH
PERSP. 282, 282 (2006); Aaron J. Cohen & C. Arden Pope III, Lung Cancer and Air
Pollution, 103 ENVTL. HEALTH PERSP. 219, 223 (Supp. 8) (1995) (suggesting that
combustion-caused air pollution contributes to lung cancer incidence among general
44. Press Release, Cal. Envtl. Prot. Agency Air Res. Bd., Study Links Air Pollution and
Asthma (Jan. 31, 2002), available at; see also
Manny Fernandez, A Study Links Trucks Exhaust to Bronx Schoolchildrens Asthma, N.Y.
TIMES, Oct. 29, 2006, at 131, available at 2006 WLNR 18761266.
45. Penny Loeb, Shear Madness (West Virginia Coal Mining), U.S. NEWS & WORLD
REP., Aug. 11, 1997, at 26, available at 1997 WLNR 4606987.
46. Id.
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B. Case for Wind Energy

Replacing fossil fuels with sources of cleaner, renewable energy
would alleviate most of the problems addressed above. One of the most
convenient and readily available sources of renewable power is wind, a
solar power whose kinetic energy can be converted into mechanical power
through the use of wind turbines.47 Historical records indicate that men
used wind power as early as the third or second century B.C.E., and by the
eleventh or twelfth century windmills were an established part of the
European landscape.48
In 2005, wind energy generated more than 2,400 megawatts, enough
to produce electricity for more than half a million American homes.49
According to the wind energy industry, wind has the potential to satisfy
twenty percent of the nations energy needs.50
Wind is a clean source of energy that produces zero emissions.51 It is
highly affordable, domestically produced, and virtually inexhaustible.52 The
encouragement of the wind energy industry has already resulted in energy
security, pollution reduction, and the creation of high-tech jobs.53 The
greatest disadvantage of wind power is the fact that it is intermittent.54

47. U.S. Dept of Energy: Wind, (last

visited Apr. 19, 2008); U.S. Dept of Energy, Wind and Hydropower Techs. Program: How
Wind Turbines Work, (last
visited Apr. 19, 2008).
WIND POWER 3 (1999), available at
Review_Historical_Modern_Utilization_Wind_Power.pdf. Readers might recall the fight
against windmills, or thirty or forty hulking giants, instigated by Don Quixote, the
legendary fictional knight from the seventeenth-century Spain. MIGUEL DE CERVANTES
SAAVEDRA, DON QUIXOTE OF LA MANCHA 98 (Walter Starkie trans., Penguin Books 1964)
[hereinafter AWEA WIND POWER OUTLOOK], available at
50. Id.
51. U.S. Dept of Energy, Wind and Hydropower Techs. Program: Advantages and
Disadvantages of Wind Power,
(last visited Apr. 19, 2008) [hereinafter Advantages and Disadvantages of Wind Power].
52. Id.
53. AWEA WIND POWER OUTLOOK, supra note 49.
54. Advantages and Disadvantages of Wind Power, supra note 51. However, the
intermittent nature of wind is not likely to present a problem for Cape Wind because winds
in Horseshoe Shoal would spin the turbines 86 percent of the time. Cape Wind: Frequently
Asked Questions,
Parent0-myfaq-yes.htm#28 (last visited Apr. 19, 2008).
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Although measures such as raising automobile fuel efficiency

standards are also a step in the right direction, the deployment of
alternative, reliable energy sources is the most effective means to actually
solve the current climate crisis.55 As of January 2008 all the proposed and
existing wind projects in the United States have so far produced 16,818.78
megawatts of energy.56 Yet the United States, where wind power served
nearly three million households at the end of 2006, is far behind Europe,
where the wind power is projected to satisfy residential needs of 195
million Europeans by the year 2020.57
If constructed, Cape Wind would displace approximately 802 tons of
sulfur-dioxide, 497 tons of nitrous-oxide, and 733,876 tons of carbon-
dioxide, significantly improving air quality of southeastern Massachusetts
and areas upwind from the farm.58

C. Environmental Record of Wind Projects

Wind farms have generally received enthusiastic approval from major
environmental groups.59 However, Robert F. Kennedy, Jr., a nationally
prominent environmental advocate and a self-proclaimed supporter of wind
power, has articulated major environmentalist objections to the project,
which are embraced by the Alliance.60 Kennedy lists the danger to the local

55. See supra note 13.

56. See Am. Wind Energy Assoc., Wind Energy Projects Throughout the U.S.A., (last visited Apr. 19, 2008). See generally AM. WIND ENERGY
ASSOC., AWEA 2007 MARKET REPORT (2008) (detailing the state of wind-energy production
throughout the United States in 2007).
57. Lester R. Brown, Europe Leading World into Age of Wind Energy, Apr. 8, 2004; Am. Wind Energy Assoc.: Wind
Energy Basics, (last visited
Apr. 19, 2008).
SUMMARY], available at
59. See, e.g., Carl Pope, Taking the Initiative: Whos Afraid of Cape Wind?, May 3,
2006, (noting the criticism of the Cape Wind
opposition by the Sierra Clubs executive director); Conservation Law Found., Cape Wind, (last visited May 8, 2008) (one of the most
influential and powerful environmental groups in Massachusetts believes Cape Wind can
be sited in an environmentally responsible manner); Natural Res. Def. Council, Wind,
Solar and Biomass Energy Today,
(describing wind energy as an alternative to old and dirty fossil fuels) (last visited Apr. 19,
60. Kennedy, supra note 30. See Alliance to Protect Nantucket Sound, Cape Wind
Threats: Environment,
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fishing industry, the farms noise and visual disturbances, risks to avian
population, and a threat to the local tourist industry as the reasons to
oppose Cape Wind.61 The main thrust of Kennedys argument is: place the
wind farm farther from the coast, and outside of Nantucket Sound, if and
when the technology allows for that.62
Cape Wind is not the only wind project that has encountered
opposition by environmentalists. A terrestrial wind farm in Altamont Pass,
California, sparked controversy and launched a number of lawsuits after it
caused a great number of bird kills, including red-tailed hawks and
federally protected golden eagles.63 On the other hand, the American Wind
Energy Association, a wind energy trade group, points out that most wind
farms have very little negative impact on bird population, and that the
overall impact of wind projects on wildlife is dwarfed by the impact on
wildlife and the environment from fossil-powered energy sources.64 The
noise and visual impact arguments raised by Cape Wind opponentsif
aesthetic objections can even be taken seriously when compared to the
concerns surrounding climate changeare counteracted by the fact that the
Cape Wind turbines will appear to be no taller than one-half of an inch
from the closest beach on the clearest day, and that the farm will generally
be farther from the nearest home than any other generating facility in

=CapeWind_Threats_Environment (last visited Apr. 19, 2008); Alliance to Protect

Nantucket Sound, Our Position,
pagename=About_Us_Mission_Our_Position (last visited Apr. 19, 2008).
61. Kennedy, supra note 30.
62. Id.
63. Will Wade, Unexpected Downside of Wind Power, WIRED, Oct. 14, 2005,; see also Center for
Biological Diversity, Altamont Pass Wind Resource Area, http://www. (last visited Apr. 19,
64. Mercury, sulfur-dioxide, and nitrogen-oxide, byproducts of coal and other fossil-fuel
plants, are highly detrimental to aquatic wildlife. American Wind Energy Association: Save
the Loon with Wind Energy, (last visited
Apr. 19, 2008); see also Daley, supra note 30.
Mass Audubon officials acknowledged . . . that the wind farm would
probably cause some bird deaths, but that any energy project would do
so. That harm, they said, was outweighed by the need for renewable
energy sources to slow carbon dioxide emissions from power plants that
most climate scientists believe are a major contributor to a warming
65. Cape Wind: Frequently Asked Questions,
Category4-Cape+Wind+Basics-Parent0-myfaq-yes.htm (last visited Apr. 19, 2008); see also
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D. Cape Wind and Environmental Justice

Because of its rising energy demands, the state of Massachusetts is
likely to site eight additional power plants within the next ten years.66 In the
absence of renewable energy projects, new plants will be powered by gas,
oil, or coal, and it is more likely than not that they will end up in
traditionally industrial, high-minority, low-income neighborhoods.67 The
phenomenon that low-income, high-minority neighborhoods are
disproportionately exposed to environmental hazards has spurred a
movement for environmental justice.68 Most environmental and health
impacts of fossil fuel consumption, other than global warming, are
generally not borne equally by all the members of our society.69 For
example, a recent study by New York University found that schoolchildren
in the Bronx, New York, who live and attend school in the vicinity of
expressways, are more likely to suffer from asthma than children in other
parts of the state.70 Similarly, mountaintop removal, although it provides all
of us with low-sulfur coal, has a devastating impact on local communities
quality of life and economy.71
In 2002, only 5.4% of all Massachusetts communities were
communities where people of color composed more than 15% of the
population, yet 18.2% of all active and 23.4% of all proposed power plants
in the state are or would be located in such high-minority communities.72
Similarly, in 2002, 50.8% of Massachusetts towns had an average income
of less than $40,000 annually, but they hosted 65.6% of active and 63% of
all proposed power plants.73 Additionally, four out of the five dirtiest power
plants in Massachusetts, which together are responsible for more than half
of all power-plant pollution in the New England region, are sited in low-
income, high-minority neighborhoods.74
Although most people do not consider Nantucket Sound to be a

Avi Brisman, The Aesthetics of Wind Energy Systems, 13 N.Y.U. ENVTL. L.J. 1, 77 (2005)
(comparing visual impacts of smokestacks and windmills).
66. Howe, supra note 17.
67. See generally Daniel R. Faber & Eric J. Krieg, Unequal Exposure to Ecological
Hazards: Environmental Injustices in the Commonwealth of Massachusetts, 110 ENVTL.
HEALTH PERSP. 277 (Supp. 2 2002) (documenting income-based and racially-based biases to
the geographic distribution of environmentally hazardous sites and industrial facilities in
Massachusetts) [hereinafter Faber & Krieg Report].
68. See id. at 286-87; see also supra note 35.
69. See Faber & Krieg Report, supra note 67, at 286-87.
70. Fernandez, supra note 44.
71. See Loeb, supra note 45.
72. Faber & Krieg Report, supra note 67, at 284.
73. Id.
74. Id.
ZIZA. FINAL 5/9/2008 4:14:34 PM


neighborhood in a traditional sense of the word, some waterfront-property

owners seem to think of it as their backyard.75 If an ocean sound was
indeed someones backyard, Cape Wind would not be sited in an
environmental justice neighborhood. The median family income in Oak
Bluffs, Marthas Vineyard, was $53,841 in 2000, and its population was
86.72% white.76 For comparison, in 2000, population of Chelsea,
Massachusetts, the proposed site of a diesel-powered plant,77 was 48.4%
Latino or Hispanic-white, while its median annual income was $30,161 per
household.78 Therefore, the inability to site a renewable energy project in
the Nantucket Sound, at least partially caused by the interests of those who
live or own property in Cape Cod and the islands, could pose a significant
environmental justice obstacle. The energy that could be generated by the
wind farm, using ocean winds, is likely to come from a dirtier source sited
in an already environmentally overburdened community.
Proximity to power plants is only one of the many environmental
hazards that lower-income, high-minority neighborhoods are
disproportionately exposed to. Individuals in these communities are
disproportionately impacted by their proximity to toxic waste disposal,
polluting industrial facilities, landfills, and other environmental risks.79
And although this inequality necessitates the reduction of the overall levels
of pollution, environmental justice advocates see the reapportionment of
environmental burdens as the only immediate solution to this problem.80 In
other words, although it would be preferable to eliminate environmental
hazards in generaland reduce the overall levels of pollutants by capping
power plant emissions and switching to alternative technologiesas long
as fossil-fuel-related environmental hazards are still present, the only fair
thing, according to environmental justice advocates, is to distribute them
equally.81 Yet, the equal distribution of environmental hazards is, according
to some commentators, impossible to implement without strong

75. See Dennis J. Duffy, Letter to the Editor, Cape Wind and NIMBY Groups, WASH.
TIMES, Oct. 27, 2006, at A18, available at 2006 WLNR 18679139.
76. Official Site of the Town of Oak Bluffs, MA,
oakbluffs.shtml (last visited Apr. 19, 2008).
77. Daley, supra note 31.
79. See Faber & Krieg Report, supra note 67, at 285-86.
80. Id. at 286-87 (Massachusetts needs to develop and implement a plan to reduce
these disparities for ecologically overburdened communities . . . . ).
81. See id.
ZIZA. FINAL 5/9/2008 4:14:34 PM


governmental initiatives,82 since industries allegedly choose neighborhoods

with less political power and capacity for resistance to site their projects.83

E. The NIMBY Phenomenon

Regardless of how important or necessary a project is from state,
regional, or national perspectives, it is likely that the people who live,
work, and raise children in the projects vicinity will want it situated
elsewhere.84 NIMBY (acronym for Not in My Back Yard) can be defined
as a land use that broadly distributes benefits, yet is difficult or impossible
to implement because of local opposition.85 Robert L. Pratt, a former
director of a renewable energy trust that funds alternative-energy projects
in Massachusetts, has recently stated that NIMBY opposition, especially
with regard to wind turbines, is the biggest challenge faced by the trust he
works for.86
The critics of NIMBY-ism view public involvement in siting and
permitting decisions with criticism, arguing that it is selfish and irrational.87
Many project proponents have argued that local opposition makes it
impossible to site essential projects that tend to have any environmental
impacts whatsoever.88 On the other hand, at least theoretically, public
participation of a group of residents in local affairs that affect the
environment where they live, work, and raise children is democratic and
essential for civil health.89 Thomas Jefferson believed that public
participation, exemplified in the concept of a New England town meeting,

(2005), available at
83. Id. at 1 (In order to bolster profits and competitiveness, industry typically adopts
pollution strategies which are not only more economically efficient but that also offer the
path of least political resistance.).
84. Risks and costs of many projects, like effects on human health, environment, or
property value, are geographically concentrated, while their benefits are widely dispersed.
See Michael E. Kraft & Bruce B. Clary, Citizen Participation and the NIMBY Syndrome:
Public Response to Radioactive Waste Disposal, 44 W. POL. Q. 299, 300 (1991).
85. Barak D. Richman & Christopher Boerner, A Transaction Cost Economizing
Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory
Responses, 23 YALE J. ON REG. 29, 37 (2006).
86. Editorial, Cash for Clean Energy, BOSTON GLOBE, Oct. 23, 2006, at 10A, available
at 2006 WLNR 23400978.
87. See Kraft & Clary, supra note 84, at 300-01.
88. Id.
89. Janice C. Griffith, Regional Governance Reconsidered, 21 J.L. & POL. 505, 519
ZIZA. FINAL 5/9/2008 4:14:34 PM


was crucial to the survival of democracy.90

Today, almost every major environmental statute provides for citizen
suits, through which private parties may bring legal actions to penalize
violators of environmental laws.91 Similarly, actions of agencies that grant
permits for various projects are usually subject to judicial review pursuant
to pertinent statutory provisions.92 In the environmental and other arenas,
the ability of citizens to voice preferences has helped remedy at least some
inequalities that stem from deep divisions along social, racial, and
economic lines in Massachusetts and the United States.93 Members of the
general population, in addition to voting, are free to participate in public
hearings, submit comments, try to influence policy, and engage in litigation
that might influence policymaking. NIMBY-ism, for example, gives
residents with lower-income and less traditional political power the ability
to keep power plants, waste sites, and other environmental hazards out of
their already burdened neighborhoods.94
However, there is evidence suggesting that the ability to challenge
government action regarding the siting of projects is more successfully
used by the residents of wealthy, suburban areas to keep their
neighborhoods clean, pristine, and desirable in terms of property values.95
Some commentators have suggested that the ability of local groups to
influence the energy facilities siting process, instead of giving everyone an
equal voice in public affairs, is used by affluent neighborhoods to keep the

90. Sheryll D. Cashin, Localism, Self-Interest and the Tyranny of the Favored Quarter:
Addressing Barriers to New Regionalism, 88 GEO. L.J. 1985, 1998 (2000) (citing Joseph P.
Viteritti, Municipal Home Rule and the Conditions of Justifiable Secession, 23 FORDHAM
URB. L.J. 1, 9 (1995)).
91. Mark Seidenfeld & Janna Satz Nugent, The Friendship of the People: Citizen
Participation in Environmental Enforcement, 73 GEO. WASH. L. REV. 269, 269 (2005).
92. See, e.g., MASS. GEN. LAWS ANN. ch. 164, 69P (West 2003) (providing judicial
review to any party aggrieved by a decision of the Massachusetts Energy Facilities Siting
Board, a body responsible for approving energy facilities siting in the Commonwealth).
93. See Robert A. Kagan, Adversarial Legalism and American Government, in THE NEW
POLITICS OF PUBLIC POLICY 88, 93 (Marck K. Landy & Martina A. Levin eds., 1995)
[hereinafter Kagan Essay] (arguing that access to courts in the form of adversarial legalism
has helped political underdogs in obtaining justice from the government). See generally
Faber & Krieg Report, supra note 67.
94. In Massachusetts and elsewhere, non-profit organizations provide free legal and
policy advice to indigent citizen groups, and many law firms work with these groups on pro
bono basis. See, e.g., Alternatives for Community and Environment, Services Program, (last visited Apr. 19, 2008).
95. Cashin, supra note 90, at 2003-15 (arguing that outer-ring suburbs in American
metropolitan areas are favored quarters that have the power to exclude undesirable
ZIZA. FINAL 5/9/2008 4:14:34 PM


environmental hazards in underprivileged areas.96 Consequently, for

decades, benefits like energy consumption have been equally enjoyed by
everyone, while the burdens of living close to power plants have been
borne only by some.
However, Cape Wind is a peculiar NIMBY phenomenon. The overall
environmental and health benefits that would be derived from wind power
are tremendous, while the burdens borne by the residents of Cape Cod,
Marthas Vineyard, and Nantucket, such as having to view fairly small
wind turbines on the horizon, are much smaller than living close to
pollution-emitting smokestacks of traditional power plants.97
The Alliance has raised more than eleven million dollars since it was
formed in 2001, and it has spent more than three million dollars in fighting
Cape Wind in 2005 alone.98 Consequently, it can fairly be viewed as a
well-funded effort by a minority of citizens to prevent a project that could
have great overall benefits. The link between funding and the opportunity
to avail oneself of legal opportunities to combat energy facilities siting
must be kept in mind as this Note reviews the history of the Alliances
court battles.


A. Cape Wind: Overview of the Permitting Process

If constructed, Cape Wind would be the nations first offshore wind
farm.99 It would consist of 130 turbines, rising to approximately 260 feet
above sea level and occupying 24 square miles of Horseshoe Shoal in
Nantucket Sound.100 The closest point of land to the northernmost turbines
would be Point Gammon on Cape Cod.101 The southeastern portion of the
wind farm would be located approximately eleven miles from the island of
Nantucket, and westernmost turbines would be located five-and-one-half

96. See Michael B. Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495, 521-22
(1994) (concluding that the opposition to waste facilities by affluent neighborhoods results
in the perpetuation of old, substandard disposal units in high-minority neighborhoods).
97. See generally Brisman, supra note 65 (arguing that the visual impacts of wind
turbines are outweighed by the need for clean sources of energy).
98. Wind Facts, Profiles in Fundraising,
in-fundraising.html (Mar. 31, 2006).
99. Cape Wind, Project at a Glance, (last visited Apr.
19, 2008).
EXECUTIVE SUMMARY 1.5.1, 1.5.3 (2004) [hereinafter DEIS EXECUTIVE SUMMARY],
available at
101. Id. 1.5.2.
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miles from Marthas Vineyard.102 Cape Wind would produce up to 420

megawatts of clean, renewable energy.103
Horseshoe Shoal in Nantucket Sound was chosen by the project
sponsors because of wind speed and direction, shallow waters, and
proximity to necessary electrical infrastructure.104 Some polls indicate that
most Massachusetts and Cape Cod residents support the project.105 But,
ultimately, Massachusetts has very little say in the project, because Cape
Wind, being sited more than three miles from the coast, is subject to
exclusive federal jurisdiction.106

1. Jurisdiction over Cape Wind

As far as the farm itself is concerned,107 Cape Wind is under exclusive
federal jurisdiction.108 The United States Army Corps of Engineers (the
Corps) initially asserted jurisdiction over the project pursuant to the
Rivers and Harbors Act of 1899 (RHA).109 The Corps jurisdiction was
challenged by project opponents because RHA was never used to authorize

102. Id.
103. Cape Wind, Project at a Glance, (last visited Apr.
19, 2008).
104. Cape Wind, Project Siting and Visual Simulations,
article7.htm (last visited May 8, 2008).
105. Jay Fitzgerald, Poll Says Most in Mass. Want Cape Windmills, BOSTON HERALD,
June 8, 2006, at 36, available at 2006 WLNR 9854410.
106. See Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, 100
(D. Mass. 2003) (citing United States v. Maine (Maine I), 420 U.S. 515 (1975) and United
States v. Maine (Maine II), 475 U.S. 89 (1986)) (rejecting an argument by a citizen group
that federal law grants jurisdiction over non-fishing activities in the entire Nantucket Sound
fishery to Massachusetts), affd 373 F.3d 183 (1st Cir. 2004), cert. denied, 543 U.S. 1121
107. See infra Part III.A.3.
108. Beginning in 1947, the Supreme Court established that the federal government has
exclusive rights to the lands under the sea. See Ten Taxpayers Citizen Group v. Cape Wind
Assocs., 373 F.3d 183, 188 (1st Cir. 2004), affg 278 F. Supp. 2d 98 (D. Mass. 2003), cert.
denied, 543 U.S. 1121 (2005). In 1953, Congress passed the Submerged Lands Act, which
gave costal states title to the seabed within three miles of their shores. Id.; see also 43
U.S.C. 1301 (2000). Congress also enacted that year the Outer Continental Shelf Lands
Act, which specified that federal law governs on the outer Continental Shelf, submerged
lands under U.S. control lying seaward of the three-mile boundary. Ten Taxpayers Citizen
Group, 373 F.3d at 188; see also 43 U.S.C. 1331 (2000).
109. See 33 U.S.C. 403 (2000) (authorizing the Corps to regulate obstructions to
navigation in navigable waters of the United States); Save Our Sound, Legal Concerns,
pager.pdf (last visited Apr. 19, 2008).
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offshore energy development.110 However, in 2005, Congress resolved this

jurisdictional uncertainty by passing the Energy Policy Act of 2005, which
amended the Outer Continental Shelf Lands Act.111 The Act granted
authority over renewable energy projects on the outer Continental Shelf,
where Cape Wind would be located, to the Minerals Management Service
(MMS), located within the Department of the Interior.112
Overall, Cape Wind still requires many state permitsprimarily
because of the underground and undersea transmission cables that would
connect the farm to the mainland and that would therefore lie on lands
under Massachusetts jurisdiction.113 Therefore, federal agencies whose
approval or input is needed include the Federal Aviation Administration,
the Environmental Protection Agency, and the Coast Guard.114 State
agencies that are involved include, among others, the Energy Facilities
Siting Board (EFSB), Department of Environmental Protection, and the
Office of Coastal Zone Management.115 Finally, Cape Wind also requires
local permits from local regulatory bodies such as the Cape Cod
Commission or the Barnstable and Yarmouth Conservation Commission.116
While it had jurisdiction over the project, the Corps performed a joint
scope of work analysis under the National Environmental Policy Act of
1969 (NEPA), the Massachusetts Environmental Protection Act
(MEPA), and the Cape Cod Commissions Development of Regional
Impact (DRI) processes.117 MMS took over the NEPA review in 2006. At
the time this Note was written, MMS was getting ready to issue a new
Draft Environmental Impact Statement (DEIS).118

110. Save Our Sound, Legal Concerns,

/ (last visited Apr. 19, 2008).
111. FEIR EXECUTIVE SUMMARY, supra note 58, 1.0.
112. Press Release, Minerals Mgmt. Serv., MMS Launches OCS Renewable Energy &
Alternative Use Website (Oct. 6, 2005), available at
113. For a full list of federal and state agencies, and the stages of each individual
application, see Table 1-2: List of Required Permits and Approvals for the Proposed
Alternative, FEIR EXECUTIVE SUMMARY, supra note 58, at 1.5.
114. Id.
offshore/Appendices/MEPA12643cert.pdf (clarifying that the state jurisdiction pertains to
the electric transmission line, which is a portion of the farm that lies within Massachusetts).
116. FEIR EXECUTIVE SUMMARY, supra note 58, at 1.5.
117. Cape Wind: Permitting Update, (last visited
Apr. 19, 2008).
118. Duffy Interview, supra note 24; see also Kristyn Ecochard, Analysis: Cape Wind
Has Faith in MMS, Mar. 6, 2007,
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2. NEPA and MEPA

NEPA, unlike some regulatory federal acts, such as the Clean Water
Act or the Clean Air Act, is a procedural act.119 Enacted in 1970 by
President Richard Nixon, NEPA requires all federal agencies to file
Environmental Impact Statements (EIS) for all major Federal actions
significantly affecting the quality of the human environment.120 Every EIS
must include an analysis of the environmental impacts of a proposed
action, the balance between the environmental impact and economic and
technical considerations, and alternatives to the proposed action.121
NEPA does not require a particular resultit only requires federal
agencies to take a hard look at environmental consequences of their
actions by undergoing set procedures before they actually act.122 Although
this might not have been the initial intent of the Congress that passed it,
NEPA has become a powerful weapon for environmentalist groups and
other opponents of projects subject to the NEPA process.123 Armed with
information about the environmental impacts of a project, usually provided
by project sponsors themselves, project opponents are able to challenge
various federal and state agency actions in courts, before administrative
agencies, and in the media.
The first step in the NEPA process is the filing of an Environmental
Assessment (EA).124 In the EA, an agency either concludes that an EIS is
necessary, or it declares a finding of no significant impact (FONSI),
which means that the project does not require an EIS.125 The review
procedures that the agencies must follow under NEPA are promulgated by
the Council on Environmental Quality (CEQ), established by NEPA.126
CEQ sets forth when a federal agency must prepare a full EIS and when
EA and FONSI are sufficient.127 If an EIS is required, the first step in the
process is scoping, which, among other things, invites participation by
other state and federal agencies and the public, determines the scope of the

(The second draft EIS submitted to MMS in February will be responded to in MMS draft
that EIS [sic] expects will be released in April.).
(7th ed. 2006).
120. 42 U.S.C. 4332(C) (2000).
121. Id.
122. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
123. FARBER ET AL., supra note 119, at 441-42.
124. 40 C.F.R. 1501.3, 1501.4 (2007).
125. Id. 1501.4(e)(1), 1508.9.
126. 42 U.S.C. 4342, 4344 (2000).
127. City of Waltham v. U.S. Postal Serv., 786 F. Supp. 105, 113 (D. Mass. 1992).
ZIZA. FINAL 5/9/2008 4:14:34 PM


EIS, and decides which issues will be discussed in the EIS.128 Under
NEPA, if a project requires review by multiple federal agencies, or federal
and state agencies, a lead agency may be designated to conduct the scope
of review.129 The scoping is followed by the Draft Environmental Impact
Statement (DEIS), a public review and comment period, Final
Environmental Impact Statement (FEIS), and finally the Record of
Decision (ROD).130
As a Massachusetts counterpart to NEPA, MEPA provides that state
agencies must ascertain the environmental impact of their projects and use
measures to minimize damage to the environment.131 MEPA review is
conducted by a state agency within the Executive Office of Environmental
Affairs (EOEA), through which the Secretary of Environmental Affairs
conducts review of projects requiring state permitting or licensing.132
MEPA requires a project proponent to file an Environmental Notification
Form (ENF) with the Secretary, on the basis of which the Secretary then
determines whether to request an Environmental Impact Report (EIR).133
In the case of Cape Wind, the Corps, as a designated lead agency,
submitted the scope of work for both ENF under MEPA and EIS under
NEPA.134 In 2004, following the scope of work, the Corps released a 3,800
page combined Draft EIS/EIR/DRI report.135
Prior to the issuance of the DEIS, there were opportunities for public
input on Cape Wind in the form of public hearings and public comment
periods.136 Public scoping hearings were held in Boston and West
Yarmouth, Cape Cod in March 2002, in Marthas Vineyard in April 2002,
and again on Cape Cod in November 2002.137 DEIS concluded that the
proposed site was economically, environmentally, and technically
preferable to two other Nantucket Sound alternatives
Monomoy/Handkerchief Shoal and Tuckerbuck Shoal.138 DEIS also

128. 40 C.F.R. 1501.7 (2007).

129. Id. 1501.5, 1506.2.
130. FARBER ET AL., supra note 119, at 446.
131. MASS. GEN. LAWS ch. 30, 61 (2006).
132. 301 MASS. CODE REGS. 11.01 (1998)
133. Id. at 11.01(4).
available at (last visited
Apr. 19, 2008).
135. Cape Wind: Permitting Update, fix (last
visited Apr. 19, 2008); see also DEIS EXECUTIVE SUMMARY, supra note 100, 1.1.
136. DEIS EXECUTIVE SUMMARY, supra note 100, 1.1.
137. Id.
138. Id. 1.4.
ZIZA. FINAL 5/9/2008 4:14:34 PM


analyzed other alternative sites.139 According to DEIS, Cape Wind would

have a beneficial impact on air quality, reduce reliance on imported fossil
fuels, create jobs, and have a beneficial impact on the local and regional
economies.140 The report also downplayed the concerns over the projects
impact on the fishing industry, navigation, bird population, and noise.141
The report was greeted with optimism by most prominent
environmental groups.142 While some underscored the importance of
building wind farms in Cape Cod rather than smokestacks somewhere else
in the region, others expressed hope that Cape Wind will become a
birthplace of our renewable energy revolution.143
Most recently, Cape Wind proponents filed the Final Environmental
Impact Report (FEIR) pursuant to MEPA, departing from their initial
intention to conduct a joint review under both MEPA and NEPA.144

3. State Role in the Siting of Cape Wind

Cape Wind, since it would be constructed in waters subject to federal
jurisdiction, is for the most part, not subject to state or local jurisdiction,
and the state of Massachusetts is therefore not able to influence or prevent
its siting by passing relevant legislation. The part of the project that is
subject to state jurisdictionthe two 18-mile, 115 kilovolt underground
electric transmission lines that would bring the generated electricity onto
the shorewas approved by the Energy Facilities Siting Board (EFSB),
a state board located administratively within the Department of
Telecommunications and Energy.145 The Alliance, among others,
participated in the agencys adjudicatory process.146
The role of the EFSB is to ensure a reliable energy supply for the
commonwealth with a minimum impact on the environment at the lowest

139. Id.
140. Id. 1.6.
141. Id.
142. Union of Concerned Scientists, Environmental Groups Weigh in on Cape Wind
DEIS, Feb. 24, 2005,
weigh-in-on-cape-wind-deis.html (listing favorable responses by eight prominent
environmental groups, among them Conservation Law Foundation, National Resources
Defense Council, and Clean Power Now).
143. Id.
144. Press Release, Cape Wind, Cape Wind Files Final Environmental Impact Report
with the Commonwealth of Massachusetts (Feb. 20, 2007),
145. In re Cape Wind Assocs., EFSB 02-2, 2005 WL 1264241, at *1 (Mass. E.F.S.C.
May 11, 2005), available at
146. Id. at *4.
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possible cost.147 The adjudicatory process conducted by the EFSB148

consists of reviewing environmental impacts of electricity-generating
facilities and the mitigation of those impacts.149 Persons or groups may
partake in EFSB proceedings by either intervening as parties or
participating as limited participants.150 One of the main differences
between the two is that parties may sponsor witnesses, while limited
participants may not.151 A petitioner must show that it is substantially and
specifically affected by the proceeding in order to intervene as a party.152
Interveners often manage to condition the grant of the EFSB permit on the
achievement of additional mitigation of environmental impacts.153
On May 10, 2005, the EFSB conditionally approved the Cape Wind
petition to build and operate the underground, undersea electric
transmission lines necessary to convey the electricity generated by Cape
Wind to the electric grid on Cape Cod.154 The EFSB granted five petitions
to intervene, among them was the Alliances petition.155 The interveners
submitted testimony on the reliability of and the economic need for the
proposed project, impact on birds and bird habitat, impact on fisheries,
acoustic impacts, potential benthic (i.e., sea floor) impacts, and coastal
processes and engineering.156
The EFSB found that the project proponents established the need for
the proposed transmission line.157 It rejected, among other things, the
argument by the Alliance that the board is required to reject the petition
under the Massachusetts Ocean Sanctuaries Act.158 The EFSB found Cape
Wind preferable to alternative projects in terms of reliability,
environmental impact, and cost.159 The EFSB also found that, even in the
face of visual, avian, and fisheries impacts, air quality benefits were

147. MASS. GEN. LAWS ch. 164, 69H (2006).

148. See 980 MASS. CODE REGS. 1.00 (1998).
149. MASS. GEN. LAWS ch. 164, 69H (2006).
150. 980 MASS. CODE REGS. at 1.05(1), 1.05(2); see also THE MASSACHUSETTS ENERGY
[hereinafter ENERGY FACILITIES SITING HANDBOOK], available at
151. ENERGY FACILITIES SITING HANDBOOK, supra note 150, at 5-7.
152. Id. at 5.
153. See, e.g., In re Cape Wind Assocs., EFSB 02-2, 2005 WL 1264241, at *1 (Mass.
E.F.S.C. May 11, 2005).
154. Id.
155. Id. at *2.
156. Id. at *4.
157. Id. at *113.
158. Id. at *5 & n.15.
159. In re Cape Wind Assocs., 2005 WL 1264241, at *15.
ZIZA. FINAL 5/9/2008 4:14:34 PM


significant, and important for Massachusetts and New England.160 The

board also found that impact on fisheries was unknown and concluded that
visual impacts needed to be further clarified.161 The board concluded that
the transmission line will be needed if the farm is built and that the
proposed line project and proposed primary route were superior to
alternatives in terms of cost, environmental impact, and reliability of
supply.162 However, the EFSB conditioned the grant of the permit for the
transmission lines on the submission of all necessary federal and state
permits needed for the wind farm, in order to prevent unnecessary
construction of the lines.163
The Cape Wind developers greeted the EFSB decision as a
significant milestone in moving the project forward and in providing
significant renewable energy benefits to the region.164 The Alliance
subsequently appealed the decision to the Massachusetts Supreme Judicial
Court and lost on the appeal.165 That appeal will be discussed below.

B. Cape Wind in the Courts

In the last four years, Cape Wind was the subject of three separate
judicial cases and their subsequent appeals, which this Note will review
here in chronological order.

1. Ten Taxpayers Citizen Group v. Cape Wind Associates, LLC

In 2003, Cape Wind was sued in the Federal District Court for the
District of Massachusetts in Boston by a Cape Cod-based group, Ten
Taxpayers Citizen Group (Ten Taxpayers).166 Ten Taxpayers challenged
the permit granted to Cape Wind by the Corps for a temporary scientific
measurement tower in Nantucket Sound.167 The Corps had granted the
permit pursuant to the federal Rivers and Harbors Act of 1899,168 but Ten

160. Id. at *111-12.

161. Id. at *112.
162. See Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 858
N.E.2d 294, 298 (Mass. 2006).
163. Id. at 295.
164. Press Release, Cape Wind Passes Major Regulatory Milestone (May 10, 2005), (quoting Cape Wind President Jim Gordon).
165. Alliance to Protect Nantucket Sound, 858 N.E.2d at 295.
166. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, 99 (D.
Mass. 2003), affd, 373 F.3d 183 (1st Cir. 2004), cert. denied, 543 U.S. 1121 (2005).
167. Id.
168. See generally 33 U.S.C. 401 (2000) (requiring that the construction in ports,
harbors, canals, or navigable waters of the United States be approved by the Corps).
ZIZA. FINAL 5/9/2008 4:14:34 PM


Taxpayers argued that Cape Wind was required to secure a state permit.169
The plaintiffs relied on the language of the 1983 amendment to a federal
act,170 arguing that it delegated authority over the entire Nantucket Sound
fishery to the Commonwealth of Massachusetts.171 Federal district Judge
Joseph Tauro, referring to the case as the first skirmish in an eventual
battle over the construction . . . of a windmill farm in Nantucket Sound,172
dismissed the complaint, concluding that nothing in the federal act granted
jurisdiction over non-fishing activities to the Commonwealth.173 The court
refused to extend the regulatory jurisdiction that exists under the
Magnuson-Stevens Act to non-fishing activities simply on the ground of
protecting fish.174
On appeal to the United States Court of Appeals for the First Circuit,
Ten Taxpayers argued that the district court should have remanded the case
to the state court for a lack of federal subject-matter jurisdiction, and it
challenged the dismissal of the complaint below.175 The lower court case
was initially filed by Ten Taxpayers in Barnstable Superior Court, but Cape
Wind removed it to the federal court, arguing that the questionwhether
Congress has delegated authority to Massachusetts under the Magnuson-
Stevens Actwas a federal question.176 The court of appeals rejected Cape
Winds position, stating that its argument that federal law does not
authorize Ten Taxpayers claims is simply a federal preemption
defense . . . . It is hornbook law that a federal defense does not confer
arising under jurisdiction.177 The court, however, found proper federal
jurisdiction on different groundscongressional incorporation of state law
on the outer Continental Shelf as federal lawand held that the case was
properly removed to the federal court.178 The court also decided that the
district court did not err in dismissing the complaint because the Outer
Continental Shelf Lands Act left no room for states to require permits or

169. Ten Taxpayers Citizen Group, 278 F. Supp. 2d at 99 (noting that the plaintiffs
argued that Cape Wind needed a license pursuant to Chapter 91 of Massachusetts General
170. See generally Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. 1800 (2000).
171. Ten Taxpayers Citizen Group, 278 F. Supp. 2d at 100.
172. Id. at 99.
173. Id. at 101.
174. Id.
175. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 373 F.3d 183, 186 (1st Cir.
2004), affg, 278 F. Supp. 2d 98 (D. Mass. 2003), cert. denied, 543 U.S. 1121 (2005).
176. Id. at 186-87. In the alternative, Cape Wind argued that deciding Ten Taxpayers
state claims would require a resolution of a substantial question of federal law. Id. at 187.
177. Id. at 191.
178. Id. at 192-93.
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licenses on the outer Continental Shelf.179 Ten Taxpayers certiorari to the

Supreme Court was denied.180

2. Alliance to Protect Nantucket Sound, Inc. v. United States

Department of the Army
In September 2003, the Alliance filed a lawsuit in the Federal District
Court for the District of Massachusetts, and afforded Judge Tauro with an
opportunity to refer to its lawsuit as the second skirmish in what may
prove to be a protracted struggle over the construction of the wind farm.181
Like the Ten Taxpayers lawsuit, this complaint also focused solely on the
construction of the scientific measurements tower.182
The Alliance contested the Corps jurisdiction under the Rivers and
Harbors Appropriations Act of 1899, arguing that the agency did not have
authority to permit activities that were unrelated to extractions on the outer
Continental Shelf,183 and that it failed to comply with the NEPA184
Pursuant to NEPA, the Corps issued an EA and a FONSI (or a
finding of no significant impact) regarding the environmental impacts of
the measurements tower.186 Judge Tauro focused on the procedural
character of NEPA, stating that although the statute requires agencies to
take a hard look at environmental consequences of the major actions
they undertake, it does not mandate any particular results.187 Affording the
Corps with a high degree of deference in interpreting the congressional
statutes and its own regulations,188 the court found that the agency was

179. Id. at 196-97.

180. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 543 U.S. 1121 (2005) (mem.),
denying cert. to 373 F. 3d 183 (1st Cir. 2004).
181. Alliance to Protect Nantucket Sound, Inc. v. U.S. Dept of the Army, 288 F. Supp.
2d 64, 66 (D. Mass. 2003), affd, 398 F.3d 105 (1st Cir. 2005).
182. See id. at 67.
183. Outer Continental Shelf is defined as the submerged lands extending from three
miles off the United States coastline to waters on the edge of the United States jurisdiction
and control. 43 U.S.C. 1331(a) (2000).
184. See generally supra Part III.A.2.
185. Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 67.
186. Id. at 69. See generally supra Part III.A.2 (discussing that a FONSI obviates the
need for an EIS).
187. Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 69 (citing Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).
188. An agencys interpretation of a statute it is charged with administering can be
found invalid only if the agency acted arbitrarily or capriciously, and the agencys
interpretation of its own regulations is valid unless it is plainly erroneous or inconsistent
with the regulations. Id. at 71-72 (emphasis and internal quotation omitted).
ZIZA. FINAL 5/9/2008 4:14:34 PM


entitled to deference in its interpretation of the scope of its authority

regarding permitting on the outer Continental Shelf.189 The court also found
that the Corps regulations, contrary to plaintiffs arguments, do not require
the Corps to engage in property interest disputes.190 The court finally
decided that the Corps sufficiently followed requirements under NEPA,191
and granted Cape Winds motion for summary judgment.192
On appeal, the First Circuit reviewed the decision de novo and
affirmed the grant of summary judgment in February 2005.193 In
determining whether Section 10 of the Rivers and Harbors Act of 1899
gives jurisdiction to the Corps over a project like Cape Wind, the court
determined that Congress intent was not to restrict the Corps jurisdiction
to mineral extractions.194 The court also deferred to the district courts
decision to defer to the Corps and not evaluate the sufficiency of Cape
Winds property interests in the outer Continental Shelf.195 Finally, the
court entertained the Alliances argument that the Corps violated NEPA by
failing to circulate drafts of EA and FONSI for public comment.196 The
court evaluated the Corps actions pursuant to the arbitrary or capricious
standard,197 and determined that its decision not to circulate the drafts was
reasonable and within the agencys discretion.198

3. Alliance to Protect Nantucket Sound, Inc. v. Energy

Facilities Siting Board
In the fall of 2006, the Alliance appealed the EFSBs conditional
approval of Cape Winds underground and undersea transmission lines.199
The Alliance brought the case pursuant to a statutory provision that
subjects EFSB decisions to judicial review.200 The case was argued in front

189. Id. at 77.

190. Id.
191. Id. at 78-82.
192. Id. at 82.
193. Alliance to Protect Nantucket Sound, Inc. v. U.S. Dept of the Army, 398 F.3d 105,
108 (1st Cir. 2005), affg 288 F. Supp. 2d 64 (D. Mass. 2003).
194. Id. at 109.
195. Id. at 113.
196. Id. at 114.
197. Id. The courts evaluate agency action to determine whether it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.
706(2)(A) (2000).
198. See Alliance to Protect Nantucket Sound, 398 F.3d at 115-16.
199. Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 858
N.E.2d 294, 295 (Mass. 2006).
200. Id. See generally MASS. GEN. LAWS ch. 164, 69P (2006); MASS. GEN. LAWS ch. 25,
5 (2006).
ZIZA. FINAL 5/9/2008 4:14:34 PM


of the Massachusetts Supreme Judicial Court.201

The Alliance contested the conditional nature of the EFSBs approval
of Cape Winds application for permission to construct the transmission
lines.202 As this Note has mentioned above, EFSB conditioned its approval
on the submission of all necessary federal and state permits, thus implying
that if Cape Wind obtained all the permits, there will be a requisite need
for the transmission lines.203 The Alliance objected to the contingent nature
of the EFSB decision, and it argued that the timing of the EFSB decision
deviated from an established standard for the determination of need.204
The Supreme Judicial Court afforded great deference to the boards
determination and decided that the new approach to determine the need
for proposed transmission lines, as well as the timing of the decision, were
within the EFSBs discretion.205 The court held that, when the proposed
facility is beyond the EFSBs jurisdiction, a demonstration of the need for
the transmission lines may be based on indicators of progress, e.g.,
progress in permitting or obtaining project financing.206
What these three cases have demonstrated so far is that the
possibilities for lawsuits and appeals are virtually endless, especially since
all the litigation so far has been triggered by the permissions for the data
tower alone, while numerous permits for the wind farm itself are still
pending.207 In a press release responding to the Supreme Judicial Courts
upholding of the EFSBs permit approval, the Alliance stated:
The Cape Wind project is far from a done deal, and this decision
represents but one of over 20 local, state and federal approvals
and permits . . . . We remain confident that the Cape Wind
project will not be permitted because of its unprecedented and
inappropriate industrial use of 24 square miles of heavily
trafficked and environmentally sensitive waters . . . .208

201. Alliance to Protect Nantucket Sound, 858 N.E.2d at 294.

202. Id. at 298.
203. Id. The board conditioned the approval because, since the wind farm was still in the
initial planning stages, it could not establish that the farm will contribute to the regional
energy supply. Id. (internal quotation marks omitted).
204. Id.
205. Id. at 299.
206. Id. at 300.
207. Cape Wind needs to obtain a variety of permits under the statutes that are subject to
judicial review, such as the National Pollutant Discharge Elimination System permit from
the Environmental Protection Agency, or Chapter 91 Waterways License from the
Massachusetts Department of Environmental Protection. See FEIR EXECUTIVE SUMMARY,
supra note 58, at 1.5.
208. Sara Parker, Massachusetts Supreme Court Rules in Favor of Cape Wind,
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It appears highly likely that all of the remaining permits and

approvals will be challenged by the Alliance in administrative proceedings
and in federal and state courts at every step of the process. The important
question isis this a desirable use of our court system? So far, state and
federal agencies with jurisdiction over Cape Wind have approved of the
farm.209 The courts have also so far sided with the agencies. The absence of
renewable, clean energy projects in Massachusetts and elsewhere will
further deteriorate regional air quality and postpone the solution to the
global climate crisis the world faces today.210 Furthermore, due to
inequalities in the political and financial powers of individual
neighborhoods, the siting of traditional, fossil-fueled power plants
contributes to the environmental justice problem, a fact which is recognized
by the Commonwealths Executive Office of Environmental Affairs.211 Yet
the construction of an offshore wind farm is delayed, and could be
ultimately prevented, by a relatively small special-interest group simply
because they have the resources to litigate the permitting process every step
of the way.

C. Adversarial Legalism and Cape Wind

1. What is Adversarial Legalism?

Robert A. Kagan, a notable American political scientist,212 has written
extensively on the problem he termed adversarial legalism.213 Adversarial
legalism refers to costly, drawn-out legal conflicts that usually surround a
permitting process or some other government activity regarding a particular
Kagan has analyzed the consequences of resolving policymaking and
policy implementation by means of litigation.215 According to him,


/rea/news/story?id=46913 (quoting the Alliance).
209. See supra Parts III.A.2-3.
210. See supra Parts II.A-B.
211. See supra Part II.D; see generally EOEA EJ POLICY, supra note 35.
212. Robert A. Kagan is a Professor of Law and Political Science at University of
California at Berkeley. University of California School of Law Faculty Profiles, (last visited Apr.
19, 2008).
LAW (2001) [hereinafter KAGAN BOOK]; Kagan Essay, supra note 93; REGULATORY
(Robert A. Kagan & Less Axelrad eds., 2000).
214. See Kagan Essay, supra note 93, at 89.
215. KAGAN BOOK, supra note 213, at 3.
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adversarial legalism has two main features: formal legal contestation and
litigant activism. Formal legal contestation refers to competing interests
and disputants [that] readily invoke legal rights, . . . and procedural
requirements, backed by recourse to formal law enforcement . . . and/or
judicial review.216 Litigant activism refers to a style of legal contestation
that is primarily dominated by disputing parties lawyers instead of
government officials or judges.217
Kagan argues that adversarial legalism derives from broader
American political traditions, attitudes, structural arrangements, and
interest group pressures.218 In essence, adversarial legalism reflects the
tension in our society between a demand for government protection from,
among other things, environmental dangers and an essential mistrust of
concentrated power.219 Such tension, in Kagans view, leads to limited and
fragmented governmental authority.220
On the one hand, Kagan notes that wide open access to courts is good:
it offers the ability to exercise a check on the arbitrary exercise of agency
power, leads to civic involvement, and helps the members of our society
who have less political power.221 Furthermore, the American legal and
political system values limited government and pluralistic democracy.222
Generally, adversarial legalism has enabled political underdogs to
challenge government in many key areas, such as racial equality or welfare
administration.223 On the other hand, Kagan argues that adversarial
legalism presents an equal opportunity weapon . . . invoked by the
misguided, the mendacious, and the malevolent . . . , and its procedures
make it possible to use the law as a weapon of extortion.224 When their
projects are challenged in the courts, proponents of projects are subjected
to increased lawyering costs, liability insurance,225 and, in the case of Cape
Wind, a possibility that any investor might withdraw when faced with the
prospect of endless lawsuits and appeals.226 Consequently, future investors

216. Id. at 9.
217. Id.
218. Id. at 15.
219. Id.
220. See id.
221. Kagan Essay, supra note 93, at 89.
222. Id. at 93.
223. Id.
224. Id.
225. Id. at 93-94.
226. Dennis Duffy, Vice President of Cape Wind, stated that every legal challenge by the
Alliance or some other group places the projects investments on hold until all the legal
hurdles are cleared. Duffy Interview, supra note 24. Also, see Kagans discussion of a
nuclear power plant in Seabrook, New Hampshire, that never lost on the merits, but whose
ZIZA. FINAL 5/9/2008 4:14:34 PM


in offshore wind projects in the United States, if any, might be deterred by

the story behind Cape Wind.
Adversarial legalism aggravates the environmental justice problem
because it forces sponsors of various projects that have dispersed benefits
and concentrated costs to move their projects to less empowered areas,
whose citizens do not have the means to litigate over the projects.227 This
can undermine non-litigation policy efforts by the government to solve
certain problems and implement desirable policies.228 Furthermore,
adversarial legalism appears to undermine the authority of agencies and
departments entrusted with permitting and regulating projects, and forces
governmental bodies to spend vast amounts of taxpayers money on
defending their actions in courts.
Some commentators have suggested that adversarial legalism is a
natural outcome of the American government model, where governmental
authority is essentially mistrusted.229 Permitting and licensing of various
infrastructure projects, the argument goes, is intentionally subjected to a
process where governmental authority is dispersed among separate
agencies and departments, administration is subject to regulation and
review, and citizens are able to challenge the bureaucrats in courts.230
However, what results from this approach is inefficiency and delays
that often have no environmentally beneficial impact at all. The Cape Wind
litigation history is not unlike Kagans description of the dredging of the
Oakland Harbor.231 In 1984, the Corps completed an EIS pursuant to
NEPA232 concerning the Port of Oaklands proposal to deepen its harbor in
order to allow for larger ships to bring in their cargo.233 After six years of
administrative hearings and litigation in federal and state courts about
where to dump the dredged material,234 the dredging finally began, but not
until after the parties returned almost full circle, back to the originally

sponsor finally gave up after the project went bankrupt in the face of repeated administrative
hearings, research projects, and court appearances. Kagan Essay, supra note 93, at 104.
227. The proximity of high-minority, low-income neighborhoods to environmental
hazards results, at least partially, from the tendency of private businesses and government
agencies to displace those burdens on working class families and communities of color. See
FABER & KRIEG, supra note 82, at 54.
228. Such as, for example, unequal distribution of environmental hazards. See, e.g.,
EOEA EJ POLICY, supra note 35.
229. See Kagan Essay, supra note 93, at 105.
230. See id.
231. Id. at 98-102.
232. See supra Part III.A.2.
233. Kagan Essay, supra note 93, at 99.
234. The groups challenging the dredging ranged from environmental groups to fishery
associations. See id. at 98-102.
ZIZA. FINAL 5/9/2008 4:14:34 PM


proposed dredging site, which, in Kagans view, was not the most
environmentally sound alternative.235
The Oakland case involved groups that challenged an economically
beneficial project with environmentalist arguments.236 Conversely, Cape
Wind is an environmentally beneficial and necessary project,237 challenged
on environmental grounds that pertinent government agencies, and most
environmental groups, have properly considered and determined to be
outweighed by the need for the project.238

2. Solving the Cape Wind Problem

Two most obvious solutions to the impasse presented by adversarial
legalism in general, and the problem faced by Cape Wind and potentially
other renewable energy projects in particular, are: 1) restricting access to
courts for groups or individuals affected by agency permitting and
licensing processes, and 2) relying on the courts to show the appropriate
deference to agency decisions.

a. Restricting the Judicial Review of Agency Decisions

The most obvious solution to the adversarial legalism problem is
restricting court access to groups, like the Alliance, that delay or prevent
the siting of essential projects. Today, most environmental and other
statutes include citizen-suit provisions,239 and the decisions of
administrative agencies can be statutorily subjected to judicial review.240
Court access could be restricted through the modification or repeal of these
provisions on federal or state levels.
Some commentators have gone so far as to argue that the judicial
review of agency rulemaking is unjustified.241 These same objections could
be extended to agency adjudications, such as the licensing of energy
facilities. Judicial review of agency actions is usually justified on the

235. Id. at 101.

236. See id. at 98-104.
237. See supra Part II.B.
238. See generally, e.g., FEIR EXECUTIVE SUMMARY, supra note 58 (favorable Cape
Wind review pursuant to MEPA); DEIS EXECUTIVE SUMMARY, supra note 100 (favorable
Cape Wind review pursuant to NEPA); In re Cape Wind Assocs., EFSB 02-2, 2005 WL
1264241, at *112 (Mass. Energy Facilities Siting Bd. May 10, 2005) (state board concluding
that the air quality benefits would outweigh avian, noise, and other environmental impacts).
239. Seidenfeld & Nugent, supra note 91, at 269.
240. See, e.g., MASS. GEN. LAWS ch. 164, 69P (2003) (provision subjecting EFSB
actions to judicial review).
241. E.g., Frank B. Cross, Shattering the Fragile Case for Judicial Review of
Rulemaking, 85 VA. L. REV. 1243, 1327 (1999).
ZIZA. FINAL 5/9/2008 4:14:34 PM


following different bases, each of which can be extended to justifying the

judicial review of agency licensing and permitting: 1) judicial review of
agency actions is necessary to preserve the rule of law; 2) pursuant to the
Supreme Court decision Marbury v. Madison;242 it is the natural province
of the courts to define the law; 3) judicial review is necessary to check the
unelected agencies; and 4) judicial review prevents manipulation of agency
decision-making by special interests.243
Each of the four justifications, the argument goes, has inherent flaws
in it. The rule of law justification rests on the assumption that, unchecked
by the courts, agencies would merely do what is politically expedient and
disregard the laws, which the courts are entrusted with upholding.244 This
argument is weakened by the fact that many agency decisions are subject to
varying court decisions due to numerous circuit splits on a particular topic,
thus making it hard for agencies to determine exactly what the law is that
they should follow.245 Circuit splits also increase uncertainty on the part of
the agencies regarding the acceptance or rejection of their decisions and
actions by the courts.246 Most regulatory decisions, furthermore, are of a
political nature, and courts often are not equipped to deal with political
questions.247 For example, decisions by Massachusetts and federal agencies
to approve Cape Wind stem from political and economic judgments and
policies, and the perceived necessity of securing a source of renewable,
clean energy.248 It could be argued that the courts simply are not equipped
to second-guess policy-influenced decisions of executive governmental
It is questionable whether the Marbury justification, i.e. that the
courts are the supreme interpreters of law, is applicable in administrative
cases, outside of the constitutional context.249 In other words, a case like
Cape Wind does not raise fundamental individual rights issues for which
judicial interpretation may be best suited.250
The justification that judicial checks are necessary to restrain the
unelected bureaucracy is similarly undermined by the fact that judges
themselves are appointed instead of elected. Arguably, judges are less

242. 5 U.S. (1 Cranch) 137 (1803).

243. See Cross, supra note 241, at 1247.
244. Id. at 1247-48.
245. Id. at 1247-49.
246. Id. at 1249-52.
247. Id. at 1266.
248. See, e.g., supra note 203 and accompanying text.
249. See Cross, supra note 241, at 1267-69.
250. See id. at 1269.
ZIZA. FINAL 5/9/2008 4:14:34 PM


likely to be influenced by the regulated bodies than the regulators are.251

However, it could be argued that the judges are, in turn, influenced by their
own political and ideological persuasions, and that, ultimately, highly
experienced agency staff is better equipped to make decisions about actions
in their field of expertise than the judges are.252 Additionally, there are
numerous non-judicial checks on the exercise of agency power, such as the
executive and legislative branches, both on the federal and state levels.253
Finally, judicial review is often perceived to be necessary to prevent
special interests from manipulating regulatory processes.254 This argument
has been used by the Alliancethe group has at one point alleged that
Cape Wind is essentially a sweetheart deal for the project developers
from their friends in Congress.255 However, the argument that the political
process within the agencies is flawed because of the power that special
interests might have over agencies can be countered with the observation
that the litigation process is similarly influenced by the parties relative
financial strengths.256 The relationship between litigant resources and court
success rate is strong.257 This is particularly true in the case of the Alliance,
whose members include extremely wealthy individuals with the resources
to litigate indefinitely.258

251. In other words, agency employees are inherently mistrusted because of their close
ties to the regulated industry. See id. at 1282 ([T]he basic case for judicial review depends
on the proposition that foxes should not guard the henhouses. (citation omitted)). In the
environmental arena, the phenomenon of the revolving door is fairly commonagency
employees routinely leave the government field to work for the industries that they used to
regulate, while former industry employees often get high positions within the agencies that
regulate that same sector. See, Revolving Door: A Directory of People
Passing Between Government and the Private Sector,
(last visited Apr. 19, 2008).
252. Cross, supra note 241, at 1281.
253. Id. at 1294-95.
254. Id. at 1314.
255. Rick Klein, Opponents Say Cape Wind Had Sweetheart Deal: Energy Bill
Provision Granted Exemptions, Prevented Bidding, BOSTON GLOBE, May 5, 2006, at A3,
available at
256. See Cross, supra note 241, at 1316.
257. See generally Donald R. Songer, The Circuit Courts of Appeals, in THE AMERICAN
COURTS: A CRITICAL ASSESSMENT 35, 50 (John B. Gates & Charles A. Johnson, eds., 1991).
258. For example, one of the Alliances most vocal board members and biggest donors is
William Koch, head of Oxbow Energy, an energy conglomerate, who also owns a summer
house overlooking Nantucket Sound. See William Koch, Tilting at Windmills, WALL ST. J.,
May 22, 2006, at A12, available at
509759134.html see also Michael Levenson, Cape Projects Foes Tap Big Spenders,
BOSTON GLOBE, Apr. 1, 2006, at A1, available at
/local/massachusetts/articles/2006/04/01/cape_projects_foes_tap_big_spenders/ (noting that
ZIZA. FINAL 5/9/2008 4:14:34 PM


Additionally, even if one were to accept that agency decisions should

be subject to judicial review in order to ensure their legality, none of the
justifications for judicial review could be used to justify the abuse of the
court system to wage lost policy battles. In other words, none of the
justifications259 outlined by Professor Cross can be used to justify the fact
that interested parties resort to our court system to financially discourage
the proponents of projects that have received agency approvals.260 The
current system allows a group like the Alliance, whose reasons for
opposing a project might be entirely non-legal, to litigate as long as it has
the fundssimply because there is never a shortage of willing lawyers or
potential legal claims, no matter how far-fetched they might be.
However, although some of the arguments for restricting the judicial
review of agency decisions are persuasive, closing the courts to the
challengers could have undesirable consequences. As mentioned before,
adversarial legalism has enabled political underdogs to demand justice
from the government.261 The biggest risk is that, by closing the courts to
those who wish to challenge agency actions, government could throw out
the baby with the bathwater.262 The current system of open challenges to
administrative actions is suitable for the American society, where citizens
are more individualistic and less trustful of the government than in other
developed countries, where social controls are weaker, citizens less
deferential and, most importantly, the country generally lacks powerful,
professional, and respected bureaucracies.263
In the environmental arena, it is probably unlikely that the drafters of
NEPA or other environmental statutes ever anticipated that, by including
judicial review provisions in the statutes, they would be enabling the
opponents of environmentally beneficial projects to challenge them in the
courts.264 Citizen-suit provisions of NEPA and other environmental statutes
are used regularly by concerned groups to challenge projects that would
otherwise cause environmental harm.265 NEPA forces both federal agencies

an unnamed contributor donated $850,000 to the Alliance, whose overall budget is in the
millions of dollars).
259. See supra note 243 and accompanying text.
260. See Kagan Essay, supra note 93, at 93 (commenting on the use of law as a weapon
of extortion).
261. Id.
262. Id. at 97.
263. Id. at 97, 109.
264. See, e.g., David J. Hayes & James A. Hourihan, NEPA Requirements for Private
Projects, 13 B.C. ENVTL. AFF. L. REV. 61, 70 (1985) (describing the misuse of NEPA even
by economic competitors to kill or delay projects subject to the statute).
265. See Sharon Buccino, NEPA Under Assault: Congressional and Administrative
Proposals Would Weaken Environmental Review and Public Participation, 12 N.Y.U.
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and project proponents to provide detailed statements of environmental

impacts of various projects.266 Arguably, lawsuits which, for example, use
NEPA in order to minimize adverse impacts of heavy logging in Americas
treasured places are different from a lawsuit that uses it to put an end to a
project that would displace 733,876 tons of carbon dioxide and
significantly improve air quality in a given region. Yet, the elimination of
judicial review provisions from environmental statutes would not
differentiate between publicly beneficial lawsuits and the misuse of the
environmental statutes by special interests. The courts would be closed to
An alternative to closing the courts to agency challenges is reliance
on the courts to defer to agency decisions.

b. Relying on the Courts to Show Chevron Deference

In a 1984 decision, Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., the United States Supreme Court formulated a test to
be applied whenever the courts are faced with agency decisions.267 The
plaintiff, a nationally recognized non-profit organization, the Natural
Resources Defense Council (NRDC),268 challenged EPA regulations that
allowed states to define the term stationary source under the Clean Air
Act to include complexes consisting of more than one pollution-emitting
device.269 In short, the EPA-endorsed interpretation of the term stationary
source allowed regulated entities to avoid the stringent requirements of a
permit program under the statute.270
NRDC argued that, although the question of whether a stationary
source may include industrial complexes had not been addressed in either
the statute or the legislative history, the interpretation adopted by the EPA
was inconsistent with the overall purpose of the statutethe improvement
of air quality.271
The Court decided that the EPAs definition of the term source is a
permissible construction of the statute.272 In reaching this conclusion, the
Court articulated a two-step test. First, the Court decided that, whenever

ENVTL. L.J. 50, 51-52 (2005).

266. 42 U.S.C. 4332(C) (2000).
267. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984), revg 685 F.2d 718 (D.C. Cir. 1982).
268. See generally Natural Resources Defense Council, The Earths Best Defense, (last visited Apr. 19, 2008).
269. See Chevron, 467 U.S. at 840.
270. See id.
271. Id. at 859-60, 862.
272. Id. at 866.
ZIZA. FINAL 5/9/2008 4:14:34 PM


courts review an agencys construction of a statute it administers, they must

determine whether Congress has spoken to the issue in question.273 If the
intent of Congress is clear, the agency and the courts must yield to the
expressed intent of Congress.274 If, however, a court decides that Congress
has not addressed the precise question, the court may not impose its own
construction of the statute, but it must decide whether the agencys
interpretation of the statute is permissible.275 The Court reasoned that
policy issues are left to agencies, and that agency decisions are given
controlling weight unless they are arbitrary, capricious, or clearly contrary
to the statute.276
The test formulated in Chevron is now widely used by the courts to
show deference to agency decisions in matters in which agencies have
expertise and experience. The Chevron test was applied in the district
courts Alliance to Protect Nantucket Sound, Inc. v. United States
Department of the Army.277 The court found that Congress had directly
spoken to the issue of the authority of the United States Army Corps of
Engineers under the first prong of the Chevron test.278 The court went one
step further and decided that, even if the pertinent statutory provision was
unclear or ambiguous, it would defer to the Corps decision because it was
reasonable under the second prong of the Chevron test.279
Similarly, although it did not use or directly refer to the Chevron test,
the Massachusetts Supreme Judicial Court showed great deference to the
expertise and experience of the state board in Alliance to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Board.280
Reliance on the courts to show proper Chevron deference to the
decisions of administrative agencies regarding the enforcement of statutes
is an alternative to the foreclosing of court access to all the challengers of
administrative actions.281 In the case of Cape Wind, the courts have so far
sided with the administrative agencies and their decisions to approve the
project.282 However, it is questionable whether other courts would follow
suit in the future. It is highly likely that, as long as offshore wind farms are
built in shallow waters, they will be in proximity to waterfront properties

273. Id. at 842.

274. Id. at 842-43.
275. Chevron, 467 U.S. at 843.
276. See id. at 843-44 (citations omitted).
277. See 288 F. Supp. 2d 64, 74-75 (D. Mass. 2003), affd, 398 F.3d 105 (1st Cir. 2005).
278. Id. at 75.
279. Id. at 76.
280. 858 N.E.2d 294, 299 (Mass. 2006).
281. See supra Part III.C.2.b.
282. See supra Part III.B.1-3.
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that often belong to politically and financially powerful individuals.

Therefore, it is likely that future projects will be met with local disapproval
and taken to the courts. A study of the D.C. Circuit decisions citing the
Chevron doctrine has revealed that the doctrine is often applied
politically.283 In other words, conservative judges use the doctrine to defer
to conservative agency interpretations but are likely to reverse liberal
interpretations, and liberal judges do the opposite.284 Political evaluation of
agency decisions by judges is, of course, highly undesirable, because
agencies have superior political standing to the judiciary, and ideological
review of agency decisions makes such review entirely unjustified.285
Another drawback to the judicial review of agency decisions on
renewable projects is the fact that it causes significant delays, even if
judges grant summary judgment motions in favor of project proponents on
the basis of Chevron deference. For example, the Alliance to Protect
Nantucket Sound, Inc. v. United States Department of the Army case,
although disposed of at the summary judgment stage, was in the courts for
approximately two years at both the district and the appellate level.286 For
comparison, scientists and experts agree that, in light of the consequences
of global warming, a drastic reduction of carbon-dioxide emissions is
needed without further delays.287
Yet, without a legislative reform of statutory provisions that address
judicial review of renewable energy projects permitting and licensing,
reliance on the courts to exercise deference to administrative decisions
pursuant to the Chevron doctrine remains the best option for those who
would like to see offshore wind projects in the United States.

Global warming and the consequent climate change are possibly the
greatest challenge faced by our generation in this century.288 In the absence
of, and in addition to, drastic, government-mandated caps on emissions of
carbon-dioxide,289 construction of renewable energy projects and the

283. Cross, supra note 241, at 1272 (citing Frank B. Cross & Emerson H. Tiller, Judicial
Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of
Appeals, 107 YALE L.J. 2155, 2175 (1998)).
284. Id.
285. See id. at 1273-74.
286. See generally 288 F. Supp. 2d 64 (D. Mass. 2003), affd, 398 F.3d 105 (1st Cir.
2005). As long as projects are stuck in courts, investors are likely to request that all appeals
be cleared before they proceed with the necessary funding to complete the project. Duffy
Interview, supra note 24.
287. See generally IPCC REPORT, supra note 4.
288. See supra Part II.A.
289. See supra notes 14-15 and accompanying text.
ZIZA. FINAL 5/9/2008 4:14:34 PM


gradual switch away from fossil fuels is the only solution to the current
climate crisis.290
Cape Wind, an offshore wind farm proposed for Nantucket Sound,
would satisfy approximately three-fourths of the electricity needs of Cape
Cod and the islands of Marthas Vineyard and Nantucket. The project,
which is subject to combined state and federal jurisdiction, has so far
received approvals from designated state and federal agencies.291 However,
it has also been a subject of great controversy due to a well-funded non-
profit organization, the Alliance to Protect Nantucket Sound, which has
battled the project in the media and in the courts.
Cape Wind is an example of a phenomenon known as adversarial
legalism, which refers to costly, drawn-out legal processes surrounding
permitting or some other administrative action.292 Two solutions present
themselves to solve the Cape Wind problem and other problems that are
likely to stem from future challenges to future offshore wind proposals.
The first one is restricting access to courts for groups that wish to challenge
administrative decisions regarding renewable energy projects.293 The
second is reliance on the courts to exercise deference to agency decisions
pursuant to the test established in Chevron U.S.A., Inc. v. Natural
Resources Defense Council.294 Restricting court access to those who
challenge administrative decisions on renewable energy projects, like
offshore wind farms, would grant finality to administrative decisions, but
this measure requires strong, independent, and respected bureaucracies, not
to mention an untenable modification of our political culture.295 This
atmosphere currently does not exist in the United States, where agencies
are mistrusted because of their strong ties with the industries they regulate
and the revolving doors phenomenon, whereby agency employees
routinely look forward to careers in the private sector, and former industry
executives staff high posts in agencies.296 The second solution to the
problem of siting offshore wind farms lies in the continuous reliance on the
courts to exercise required deference pursuant to the Chevron doctrine
articulated by the Supreme Court.297 The shortcoming to this approach rests
in the fact that the application of the Chevron deference may yield

290. See supra Part II.B.

291. See supra Parts I-III.A.
292. See supra Part III.C.1.
293. See supra Part III.C.2.a.
294. See supra Part III.C.2.b.
295. See supra note 263 and accompanying text.
296. See supra note 251 and accompanying text.
297. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984), revg 685 F.2d 718 (D.C. Cir. 1982).
ZIZA. FINAL 5/9/2008 4:14:34 PM


inconsistent results, depending on ideologically-biased decisions by

In light of the problems that will be caused if dependence on fossil
fuels continues, however, it is highly necessary for the courts to defer to
agency decisions when reviewing challenges to renewable energy projects.
Additionally, state and federal legislatures should grant more finality to
agency determinations, restricting judicial access to the claims brought to
delay or discourage renewable energy projects.

298. See supra III.C.2.b.