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DC Circuit Vacates FAA Determination that Cape Wind Project Poses No Harm

On October 28, 2011, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit) vacated and remanded the Federal Aviation Administration’s (“FAA”) “No Hazard” determinations for the Cape Wind Associates’ proposed wind farm off of the Nantucket Sound (“Cape Wind project”).  The DC Circuit ruling is another major setback to the Cape Wind project that had its loan program put on hold earlier this year by the Department of Energy (see May 23, 2011 edition of the WER).

In April, the Department of Interior (“Interior”) gave its final approval to the Cape Wind Project (see April 25, 2011 edition of the WER).  The Cape Wind project is a 130 turbine wind farm, and it is the first commercial wind project to sign a lease with the Interior for the development on the Outer Continental Shelf (see October 8, 2010 edition of the WER).  The Interior’s lease specifically states the Cape Wind Project must abide by any future FAA mitigation that might be imposed in order to eliminate any hazards of the project.  The town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound (together the “petitioners”) petitioned the DC Circuit, arguing that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers of the project to local aviation.  The FAA countered that the petitioners lacked standing and that the claims brought are faulty.  The DC Circuit sided with the petitioners, finding the FAA misread its own regulations and did not adequately justify its No Hazard determinations.

The DC Circuit relied heavily on evidence submitted by the petitioners, air traffic controllers, and an airline company showing the potential safety risks, particularly to pilots that fly under visual flight rules (“VFR”).  Those pilots regularly fly beneath the fog and inclement weather in the sound, but the FAA downplayed those hazards by relying on a narrow provision of its own handbook.  However, the DC Circuit cited to multiple regulations that were never addressed by the FAA as part of the No Hazard determinations, and the DC Circuit found several instances where the safety of VFR aircrafts could be jeopardized by the Cape Wind Project.  The DC Circuit found that the FAA may still come to the same conclusion, but the agency cannot circumvent its responsibility to analyze the risks posed by the Cape Wind Project and fully explain its conclusions. 

A copy of the DC Circuit opinion is available here.