Barnstable v. Massachusetts Energy Facilities Siting Board
| Decision Date | 04 May 2009 |
| Docket Number | BACV200800281 |
| Citation | 09 MBAR 0120 |
| Parties | Town of Barnstable v. Massachusetts Energy Facilities Siting Board et al.[1] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Rufo, Robert C., J.
Opinion Title: MEMORANDUM OF DECISION AND ORDER ON CAPE WIND ASSOCIATES LLC'S MOTION TO DISMISS COMPLAINT PURSUANT TO MASS.R.CIV.P. 12(b)(6) and 12(b)(1) AND MASSACHUSETTS ENERGY FACILITIES SITING BOARD'S MOTION TO DISMISS PURSUANT TO MASS.R.CIV.P. 12(b)(1)
The Town of Barnstable filed this action seeking a declaratory judgment that defendant Energy Facilities Siting Board lacks jurisdiction to override a decision rendered by defendant Cape Cod Commission with respect to a proposed commercial wind energy facility known as the Cape Wind project. The Town of Barnstable further seeks a declaratory judgment that the only avenue of appeal of the Cape Cod Commission's decision in this case is to the Barnstable Superior Court or the Land Court pursuant to St. 1989, c. 716. This matter is before the court on the defendants' motion to dismiss the Amended Complaint pursuant to Mass.R.Civ.P. 12(b)(1) and Mass.R.Civ.P. 12(b)(6). For the reasons discussed below, the defendants' motions to dismiss are ALLOWED.
The following facts, taken from the amended complaint, are assumed to be true for purposes of this motion to dismiss. Defendant Cape Wind Associates LLC ("Cape Wind") is the proponent of a renewable energy wind power project consisting of 130 wind turbine generators on a grid over 25 square miles of sub-tidal area located on Horseshoe Shoal in Nantucket Sound. The wind generated electricity from each turbine will be transmitted via submarine transmission cables to an electric service transformer platform, located within the array in federal waters, which will hold 40,000 gallons of cooling oil. Approximately 12.5 miles of electric transmission cables will cross federal and then state waters to connect the service transformer platform to Cape Cod's mainland in Yarmouth. The transmission cables will then extend under existing public ways and an NSTAR Electric Company right-of-way and interconnect to the existing electric transmission grid at an NSTAR substation in the Town of Barnstable ("the Town"). The Town will be the closest emergency responder in the event of a collision or other accident resulting in the illegal discharge of petroleum products into Nantucket Sound from the service transformer platform or from barges transporting petroleum to Nantucket.
Pursuant to G.L.c. 164, §69J and §69J1/4, no state agency may issue a construction permit for a "facility," defined to include a new electric transmission line of a certain length and design rating, until the state Energy Facilities Siting Board ("EFSB") approves a petition to construct that facility. See Alliance to Protect Nantucket Sound Inc. v. Energy Facilities Siting Bd., 448 Mass. 45 46-47 (2006). EFSB's statutory mandate is to "provide a reliable energy supply for the commonwealth with a minimum impact on the environment." G.L.c. 164, §69H. On May 11, 2005, EFSB issued a final decision approving, with conditions, Cape Wind's request to construct the electric transmission cables in state waters and on state land to connect the service transformer platform to the regional electric grid on Cape Cod ("the Cable Project"). The Supreme Judicial Court affirmed EFSB's decision on December 18, 2006. See Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. at 56.
The Cape Cod Commission ("the Commission") is a regional planning and land use agency within the structure of Barnstable County government created by the enactment of St. 1989, c. 716 ("the Act"). The Commission's mandate is to protect, preserve and enhance the unique natural, coastal, scientific, historical, and recreational values possessed by Cape Cod. St. 1989, c. 716, §1. Pursuant to the Act, the Commission has created a regional policy plan to balance economic development and resource conservation. See St. 1989, c. 716, §7. The Commission's approval is required prior to the commencement of construction of any project that qualifies under the Act as a Development of Regional Impact ("DRI"), one which because of the magnitude of its impact on the natural or built environment, is likely to present issues affecting more than one municipality. See St. 1989, c. 716, §2(h). The Commission must review such a project to determine whether it conforms to the regional policy plan and may approve a project if it is consistent with the regional policy plan, its probable benefit outweighs its probable detriment, it is consistent with municipal development ordinances, and if applicable, it is consistent with municipal local comprehensive plans approved by the Commission. See St. 1989, c. 716, §§12, 13. Pursuant to Section 13(e) of the Act, if the Commission fails to approve a DRI, the project may not go forward. However, any party aggrieved by the Commission's decision may seek judicial review in the Barnstable Superior Court or Land Court. St. 1989, c. 716, §17(b). The reviewing court shall hear all the evidence, determine the facts, and annul the decision if the Commission exceeded its authority. The Act provides that "[t]he foregoing remedy shall be exclusive." St. 1989, c. 716, §17(d).
The Cable Project automatically qualified as a DRI because it is subject to review under the Massachusetts Environmental Policy Act. See St. 1989, c. 716, §12(i). After a series of public hearings, on October 18, 2007, the Commission denied Cape Wind's application for DRI approval of the Cable Project, without prejudice, under Sections 12 and 13 of the Act. The Commission cited Cape Wind's failure to provide sufficient information to enable the Commission to assess the impact of the project and its consistency with the regional policy plan. Cape Wind did not, as set forth in the Act, appeal the Commission's decision to the Barnstable Superior Court or Land Court.
Instead, on November 21, 2007, Cape Wind applied to EFSB for a certificate of environmental impact and public interest ("Certificate") for the Cable Project pursuant to G.L.c. 164, §69K. A Certificate is "a composite of all individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation of the facility." G.L.c. 164, §69K. EFSB is authorized to issue a Certificate when a facility "cannot be constructed due to any disapprovals, conditions or denials by a state or local agency or body..." G.L.c. 164, §69K. The purpose of §69K is to "ensure that local boards do not use their power over licenses and permits to thwart the needs of the broader community for a reliable, affordable, and environmentally sound energy supply." City Council of Agawam v. Energy Facilities Siting Bd., 437 Mass. 821, 828 (2002). In its application to EFSB, Cape Wind seeks a Certificate for the Cable Project which includes DRI approval as well as approval from the Town for road-opening permits under G.L.c. 164, §87 and G.L.c. 166, §21; a state highway opening permit under G.L.c. 81, §21; use and occupancy approval pursuant to G.L.c. 6A, §19 to cross under an existing rail line located on property owned by the Executive Office of Transportation; a Chapter 91 license; Section 410 Water Quality Certification; and approval from the Barnstable Conservation Commission under both G.L.c. 131, §40 and the local wetlands ordinance.
EFSB is required by statute to conduct a public adjudicatory hearing on a petition for a Certificate. G.L.c. 164, §69M. On December 21, 2007, EFSB issued a Notice of Adjudicatory Hearing on Cape Wind's application for a Certificate. The Town has intervened in the EFSB proceedings and has filed motions arguing that EFSB lacks jurisdiction to override the Commission's denial of DRI approval. The EFSB proceedings are still pending. Ultimately, EFSB must issue a written decision granting or denying the Certificate which contains findings with respect to the need for the facility to meet the energy requirements of the applicant's market area; the compatibility of the facility with considerations of environmental protection, public health, and public safety; the extent to which construction and operation of the facility will fail to conform with existing state and local laws and regulations; and the public interest, convenience and necessity requiring construction and operation of the facility. G.L.c. 164, §69O. Once EFSB issues a Certificate:
no state agency or local government shall require any approval, consent, permit, certificate or condition for the construction, operation or maintenance of the facility with respect to which the certificate is issued and no state agency or local government shall impose or enforce any law, ordinance, by-law, rule or regulation nor take any action nor fail to take any action which would delay or prevent the construction, operation or maintenance of such facility.
G.L.c. 164, §69K. However, any party in interest aggrieved by EFSB's decision with respect to a Certificate may appeal to the Supreme Judicial Court in accordance with G.L.c. 25, §5. See G.L.c. 164, §69P. The Town is a party in interest in the EFSB proceedings with such appellate rights. See 980 Code Mass. Regs. §1.05(f).
The Town filed this suit against EFSB, the Commission, and Cape Wind on April 9, 2008. Count I of the Amended Complaint seeks a declaratory judgment that the Commission has exclusive jurisdiction over DRI approval under the Act, such that EFSB lacks jurisdiction to issue DRI approval as part of a Certificate under G.L.c. 164, §69K. Count II of the Amended...
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