DC Cir. Decision Blows First Offshore Wind Farm Out of the Water - Property Law - DC Circuit
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DC Cir. Decision Blows First Offshore Wind Farm Out of the Water

In a decision that will delay - or kill - a Cape Cod wind energy project, the D.C. Circuit Court of Appeals recently reminded us that a federal agency's departure from its own handbook is arbitrary and capricious.

Cape Wind Associates proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound. If constructed, the project would be the nation's first offshore wind farm.

After Cape Wind notified the Federal Aviation Administration (FAA) of the proposed construction, the FAA began studies to determine whether the project would obstruct navigable airspace or interfere with air navigation facilities and equipment.

The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines, concluding that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities."

The petitioners - the town of Barnstable, Mass. and the Alliance to Protect Nantucket Sound - challenged the FAA's No Hazard determinations, arguing that the FAA violated its governing statute, misread its own regulations, and that its failure to calculate the dangers posed to local aviation was arbitrary and capricious.

The D.C. Circuit Court of Appeals agreed with the petitioners that the FAA misinterpreted its handbook when it issued the No Hazard determination.

The court noted that the Department of Interior leased the offshore project area to Cape Wind conditioned on an FAA No Hazard determination, thereby giving the FAA its blessing to impose any future mitigation measures that the FAA might deem necessary to reduce or eliminate a hazard on Cape Wind.

The FAA, in what the D.C. Circuit described as "a curious display of agency modesty," downplayed its role in the Interior lease, and claimed that Interior had spent years studying and deliberating about Cape Wind.

The court vacated the FAA's No Hazard determinations, and ordered that the agency start a new determination process applying the guidelines from its handbook.

It's important to note that the D.C. Circuit Court of Appeals did not say that the FAA's conclusion was wrong; it merely determined that the FAA had not used to proper procedure in arriving at its conclusion. For now, Cape Wind is dead in the water, but the FAA could revive the offshore wind farm project with new No Hazard determinations.

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