Brian E.J. Martin

October 10, 2009

Senator Ted Kennedy passed away in late August, causing Americans to reflect on the Senator's distinguished legacy. Senator Kennedy's accomplished commitment to environmental causes remains an indelible part of that legacy. In spite of (or perhaps "because of") his environmental advocacy, the Senator opposed a prominent clean energy project; one that would have supplied his home state with 10% of its electricity needs without carbon emissions and offset the use of a carbon-intensive power plant. The Cape Wind Energy Project (Cape Wind), intended for Nantucket Sound (4-11 miles offshore from Massachusetts' Cape Cod), is a controversial offshore wind farm; the 130-turbine farm was first proposed in 2001, but as of late 2009 the wind farm remains mired in regulatory limbo. Since Cape Wind is the nation's most prominent and most advanced offshore wind farm proposal, the fate of Cape Wind will have direct impact on future interest in offshore wind development. As several newspapers have noted, the Senator's passing may influence the future of one of the most significant energy projects in American history, after his years advocating political and regulatory delays. However, to suggest that merely without Senator Kennedy's opposition, Cape Wind will succeed, is to underestimate the regulatory impediments.

Offshore wind energy, generated by 285-foot high turbines such as those proposed for Cape Wind, shows great promise and attracts many supporters. Offshore wind is a domestic, renewable energy source, and harnessing wind means less dependence on foreign fuels. Harnessing wind energy can offset dependence on oil or coal fueled generators and promote a healthier environment. Northeastern offshore winds are some of the strongest and most consistent winds in the country, especially the winds near major urban hubs like Boston and New York (limiting the need for extensive transmission infrastructure). Several European nations have had terrific success in the field during the last decade, and ten American states are currently evaluating proposals. Offshore wind, even in Massachusetts, has become increasingly popular; most Massachusetts citizens and most Cape Cod residents support Cape Wind, including Massachusetts Governor Deval Patrick. However, despite their growing popularity and a national commitment to energy security and stability, no developer has yet constructed an American offshore wind farm because no developer has secured all the necessary permits to build turbines and transmit electricity.

The regulatory process and political opposition have so far countervailed Cape Wind's supporters. Many of Cape Wind's regulatory delays relate to the nature of a typical offshore project: the developer must lease federal submerged lands, arrange to pass through Massachusetts waters, and make landfall in small towns, then transmit electricity through more towns. Cape Wind has needed to acquire an estimated 26 siting permits, from diverse federal, state, and local agencies. Systemic redundancies abound, as agency after agency conducts independent environmental review of the proposal. Furthermore, the sheer "newness" of this project has led to unanticipated holdups; the Federal Aviation Administration, for example, delayed approval for the turbines, declaring "[i]nitial findings . . . indicate that the structure as described exceeds obstruction standards and/or would have an adverse physical or electromagnetic interference effect."

Significant local and national political forces, beyond the Kennedy family, oppose Cape Wind and hope to delay the project by lobbying the regulatory boards, filing lawsuits, or enacting new prohibitive laws. Critics often associate the local opposition with NIMBY-ism ("not in my backyard"), but mere NIMBY-ism too simplistically describes the conflicted sentiments of Cape residents. Instead, local opponents emphasize diverse concerns about the project, such as fears of "energy sprawl," aesthetic pollution, the wildlife impact, irreparable disruption of traditional ways of life (including Native American tribal interests), and the commercialization of "the commons." To this day, disparate local political and regulatory boondoggles impede Cape Wind, such as recent efforts by two Native American tribes to recognize the proposed site as vital to tribal customs under Section 106 of the National Historic Preservation Act, which would prevent construction (the tribes' efforts have been generously funded by a prominent coal company executive).

Supporters of Cape Wind typically associate the opposition with the powerful late Senator, whose primary residence was in the Massachusetts town of Hyannis Port. That estate "looks out onto the proposed wind farm site." One derisive editorial board described the Kennedys as "Hyannis Port Sopranos, supplying the muscle . . . . [and] working furiously behind the Congressional scenes to kill Cape Wind." In 2006, at the behest of Senator Kennedy, language was inserted into a Coast Guard spending bill to allow Massachusetts' then-governor (a Cape Wind opponent) to veto Cape Wind. The bill's "narrowly written language applies only to wind energy facilities in Nantucket Sound and would allow the Coast Guard commandant to reject the [wind farm] plan if he deems it a hazard to navigation or if the governor opposes it for any reason." That sneak-attack on Cape Wind failed, but the Senator's family continued to battle the project. In 2008, after the Department of the Interior determined that Cape Wind would make generally "no significant impact on the human environment," the Senator criticized the finding, claiming it "virtually assured years of continued public conflict and contentious litigation." The late Senator's nephew, the prominent environmentalist Robert F. Kennedy, also opposes Cape Wind, and stated in a 2005 op-ed: "[S]ome places should be off limits to any sort of industrial development. I wouldn't build a wind farm in Yosemite National Park. Nor would I build one on Nantucket Sound." The late Senator and Robert F. Kennedy also sought to have Nantucket Sound designated as a national marine sanctuary to bar development, an effort focused on the effects of industrialization in a "special place." However, even though the Kennedy family and the late Senator opposed Cape Wind, the regulatory delays that prolonged the permitting process have more directly impeded the project, as indicated by the continued and persistent delays.

Cape Wind remains in regulatory limbo, a worrisome sign for supporters of domestic offshore wind power and an indicator that no one opponent single-handedly stalled the project. The Cape Wind developers have no special insight into this problem, repeatedly suggesting during the past two years that development is imminent. As the most advanced offshore wind proposal, initiated in a state well-regarded for environmental policy, other developers warily consider Cape Wind a bellwether for offshore wind development. To access the valuable offshore wind resource, Northeastern coastal states are considering radical alternatives to private development, such as an enormous state-conceived turbine farm to harness wind energy from Maine to New Jersey. Although some of the delays that hindered Cape Wind may diminish, more impediments may crop up, inspired by the past success of political maneuvering to stall the project. Even though some media observers speculate that the Senator had excessive clout to delay the project, it seems reasonable that delays will persist regardless of his opposition.

Sources:

Stephanie Ebbert, Cape Wind is dealt a setback, Boston Globe, http://www.boston.com/news/local/massachusetts/articles/2006/04/07/cape_wind_is_dealt_a_setback/.

Editorial, Blowhards, Wall St. J., Jan. 24 2009, available at http://online.wsj.com/article/SB123275548773411757.html.

Editorial, As Leader of Green Economy, Obama Should Back Cape Wind, Boston Globe, http://www.boston.com/bostonglobe/editorial_opinion/editorials/articles/2009/08/29/as_leader_of_green_economy_obama_should_back_cape_wind/ (Aug. 29, 2009).

Martin Finucane, FAA finds Cape Wind Project Would Cause Radar Interference Boston Globe, Feb. 13, 2009, available at http://www.boston.com/news/local/breaking_news/2009/02/faa_finds_cape.html.

Gayle Fee and Laura Raposa, Ted Kennedy, Richard Egan Deaths a Blow to Wind Farm Foes, Boston Herald, Sept. 13, 2009, available at http://www.bostonherald.com/business/general/view/20090913ted_kennedy_richard_egan_deaths_a_blow_to_wind_farm_foes/.

Karen Jeffrey, Sen. Kennedy fought for Cape | CapeCodOnline.com, Cape Cod Times, Aug. 27, 2009, available at http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20090827/NEWS/908270314/-1/NEWSMAP.

Robert F. Kennedy Jr., An Ill Wind Off Cape Cod, N. Y. Times, Dec. 16, 2005, available at http://www.nytimes.com/2005/12/16/opinion/16kennedy.html.

Rick Klein, Kennedy Eases His Stance on Wind Plan, Boston Globe, http://www.boston.com/news/local/massachusetts/articles/2006/05/26/kennedy_eases_his_stance_on_wind_plan/.

Evan Lehman, Pioneering Wind Farm Faces Another Delay, This Time Over Indian Sites, N.Y. Times (ClimateWire), Oct. 5, 2009, http://www.nytimes.com/cwire/2009/10/05/05climatewire-pioneering-wind-farm-faces-another-delay-thi-73053.html?scp=2&pagewanted=all.