Alliance to Prot. Nantucket v. U.S. Dept. of Army
| Decision Date | 18 September 2003 |
| Docket Number | No. CIV.A.02-11749-JLT.,CIV.A.02-11749-JLT. |
| Citation | 288 F.Supp.2d 64 |
| Parties | ALLIANCE TO PROTECT NANTUCKET SOUND, INC.; Ronald Borjeson; Wayne Kurker; Shareen Davis; Ernest Eldredge; David Ellsworth; Robert Hazelton; Osterville Anglers Club, Inc.; and Hyannis Anglers Club, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE ARMY; Honorable Thomas E. White, Secretary of the Army; United States Army Corps of Engineers; LT. General Robert B. Flowers, Chief of Engineers, United States Army Corps of Engineers; and Colonel Thomas L. Koning, District Engineer, United States Army Corps of Engineers, Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. |
| Court | U.S. District Court — District of Massachusetts |
Benjamin S. Sharp, Donald C. Bauer, Perkins Coie LLP, Washington, DC, Gary L. Gill-Austern, Nutter, John P. Driscoll, Martin C. Pentz, McClennen & Fish, LLP, Boston, MA, for Plaintiffs.
Anton P. Giedt, United States Attorney's Office, Boston, MA, Jon M. Lipshultz, Environmental Defense Section, Washington, DC, for Defendants.
Michael David Vhay, Piper Rudnick LLP, Stephen H. Oleskey, Hale & Dorr, LLP, Boston, MA, Robert D. Smith, Town of Barnstable, Hyannis, MA, Ann L. Carpenter, Sullivan, Weinstein & McQuay, P.C., Boston, MA, John C. Creney, John C. Creeney PC, Yarmouth Port, MA, Darlington P. Hicks, Conservation Law Foundation, William L. Pardee, Attorney General's Office, Boston, MA, for Movants.
This action is the second skirmish in what may prove to be a protracted struggle over the construction of a wind energy plant in Nantucket Sound, Massachusetts.1 It involves a challenge by Plaintiffs2 to the decision of the United States Army Corps of Engineers ("Corps"), one of the named Defendants,3 to issue a permit to Cape Wind Associates, LLC ("Cape Wind" or "Intervenor")4 under section 10 of the Rivers and Harbors Appropriation Act of 1899 ("section 10").5 The permit authorized Cape Wind to construct a Scientific Measurement Devices Station ("data tower" or "tower") on an area of the seabed in Nantucket Sound that is located on the Outer Continental Shelf ("OCS").6
Plaintiffs assert that: (1) the Corps lacked the authority to issue a section 10 permit for activities on the OCS unrelated to the extraction of resources from the seabed, (2) the Corps' decision to issue the permit was unlawful because it knew that Cape Wind did not have and could not obtain the property interest in OCS lands that, according to Corps regulations, it needed to undertake construction of the data tower, and (3) the Corps failed in a variety of ways to satisfy its obligations under the National Environmental Policy Act ("NEPA").7 Defendants and Intervenor contest each of those assertions.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs have moved for summary judgment. Defendants and Intervenor oppose Plaintiffs' motion for summary judgment and have, themselves, moved for summary judgment.
On November 20, 2001, Cape Wind submitted an application to the Corps for a permit under section 10 to construct and operate a data tower in an area of Nantucket Sound known as Horseshoe Shoals.8 (Horseshoe Shoals is located on the OCS, which is subject to federal jurisdiction and control.9) The data tower, upon its completion, will consist of a fixed, monopole structure with an overall height of approximately 197 feet.10 The monopole structure will be supported by three, thirty-six-inch in diameter, open-ended steel piles that will be driven beneath the ocean floor, and it will have three levels of instrumentation.11 The three steel piles will also support a platform set about thirty-three feet above mean low water in waters that are approximately thirteen feet deep.12 An Acoustic Doppler Current Profiler ("ADCP") is to be mounted on the seabed in close proximity to the tower.13 A wire will connect the ADCP to the data tower.14 The wire will be buried beneath the ocean floor.15 The entire data tower project will "cover[] an area of ocean waters of approximately 900 sq[uare] f[ee]t."16
On November 21, 2002, Cape Wind submitted a separate application to the Corps for a section 10 permit to construct and operate a wind energy plant on Horseshoe Shoals.17 The application describes the wind energy plant as consisting of 170 wind turbine generators on a grid covering approximately twenty-six square miles of the Sound.18 Each wind turbine will be 263 feet in height and will be fitted with three blade rotors (160 feet in length) that will, themselves, reach a maximum height of 423 feet.19 The turbines will be placed on monopole foundations that will be driven beneath the ocean floor.20
On December 4, 2001, the Corps announced to the public that it was considering Cape Wind's data tower application.21 (The announcement stated that the wind energy plant project would be "the subject of a separate and distinct ... review process with further opportunity for public involvement."22) At that time, the Corps invited the public to comment on the data tower application, and it set January 4, 2002 as the deadline for the public comment period.23 In response to requests for additional time for public comment, the Corps subsequently extended the comment period on more than one occasion.24 The public comment period eventually came to a close on May 13, 2002.25
In addition to inviting the public to comment during the above mentioned period, the Corps held public hearings in Hyannis, Massachusetts and Martha's Vineyard, Massachusetts on April 11, 2002 and April 18, 2002, respectively.26 The hearings were intended to provide an opportunity for interested groups and individuals to comment on the data tower application.
The comment period and hearings generated a considerable response from federal and state agencies and the general public. As one might expect, the administrative record contains comments both in opposition to27 and in support of the data tower project.
On August 19, 2002, after nine months of review, the Corps issued a section 10 permit to Cape Wind that authorized it to move forward with the data tower project, subject to certain conditions set forth in the permit.28 Among those conditions are the following: Cape Wind must remove the data tower "within five years of the start of construction,"29 Cape Wind must "post a bond for $300,000 ... for emergency repairs or removal of the tower,"30 and Cape Wind must share the data it collects with government agencies, educational institutions, and research organizations.31
In addition to the permit, the Corps issued an Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI") pursuant to NEPA requirements.32 (It did not, however, make those documents available for public comment.)
A few words about the purposes of and the legal framework that surrounds NEPA are in order. NEPA was enacted in recognition of "the profound impact of man's activity on ... the natural environment ...."33 It was promulgated to ensure that federal agencies consider the potential environmental consequences of proposed projects before allowing them to proceed.34 Toward this end, it provides "a set of `action-forcing' procedures that require that agencies take a `hard look at environmental consequences ....'"35 Although NEPA imposes a series of "action-forcing" procedural requirements on federal agencies, it "does not mandate particular results."36 As long as "the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs."37
As a means to ensure that federal agencies take the requisite "hard look" at the environmental impacts of proposed actions, NEPA requires that a federal agency prepare a "detailed statement" (which is known as an environmental impact statement ("EIS")) whenever it proposes a "major Federal action[ ] significantly affecting the quality of the human environment."38 The EIS should provide a detailed discussion of, among other things, "the environmental impact of the proposed action" and "alternatives to the proposed action."39
NEPA also established the Council on Environmental Quality ("CEQ") to help further the statute's environmental objectives, and it authorized the CEQ to enact regulations describing environmental review procedures that federal agencies are to follow to comply with NEPA.40 Pursuant to this power, the CEQ "has promulgated detailed regulations setting forth when a federal agency must prepare a full [EIS] or the less extensive [EA and FONSI] and what must be included in each."41 It is, thus, clear that not every proposed action requires the preparation of an EIS.
Indeed, according to CEQ regulations, an agency may comply with NEPA by preparing an EA and a FONSI if it finds that a proposed action "will not have a significant effect on the human environment ...."42 An EA is a "concise ... document" that serves to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI]."43 It includes "brief discussions of the need for the proposal, of alternatives ..., [and] of the environmental impacts of the proposed action and alternatives ...."44
A FONSI is a "brief[]" document that "present[s] the reasons why an action ... will not have a significant effect on the human environment ...."45 The FONSI "include[s] the [EA] or a summary of it and ... note[s] any other environmental documents related to it ...."46
Subsequent to the Corps' decision to issue the section 10 permit, Plaintiffs brought this action challenging that decision. Presently before this court are Plaintiffs, Defendants, and Intervenor's motions for summary judgment. Plaintiffs argue that, for the reasons that are recounted below, the Corps acted unlawfully in issuing Cape Wind a section 10 permit for the data tower project. Defendants and Intervenor...
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