Others 1 v. Energy Facilities Siting Bd. & Others 23 .

• Decision Date: 31 August 2010
• Docket Number: Nos. SJC-10596, SJC-10578.,s. SJC-10596, SJC-10578.
• Citation: 932 N.E.2d 787,457 Mass. 663
• Parties: ALLIANCE TO PROTECT NANTUCKET SOUND, INC., & others 1 v. ENERGY FACILITIES SITING BOARD & others 2 3 (and a consolidated case 4 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 663
932 N.E.2d 787

ALLIANCE TO PROTECT NANTUCKET SOUND, INC., & others ¹
v.
ENERGY FACILITIES SITING BOARD & others ^{2 , 3} (and a consolidated case ⁴ ).

Nos. SJC-10596, SJC-10578.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued Feb. 11, 2010.
Decided Aug. 31, 2010.

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COPYRIGHT MATERIAL OMITTED.

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COPYRIGHT MATERIAL OMITTED.

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Eric W. Wodlinger (Gareth I. Orsmond with him), Boston, for Cape Cod Commission.

Douglas H. Wilkins, Cambridge (Nina L. Pickering Cook with him), for Alliance to Protect Nantucket Sound & others.

Charles S. McLaughlin, Jr., for town of Barnstable.

Kenneth W. Salinger, Assistant Attorney General (Annapurna Balakrishna, Assistant Attorney General, with him), for Energy Facilities Siting Board & another.

David S. Rosenzweig (Erika J. Hafner with him), Boston, for Cape Wind Associates, LLC.

932 N.E.2d 791

Shanna M. Cleveland, for Conservation Law Foundation, intervener, submitted a brief.

Matthew F. Pawa & Mark R. Rielly, Newton, for Clean Power Now, Inc., intervener, submitted a brief.

The following submitted briefs for amici curiae:

Ronald H. Rappaport, Edgartown, & Michael A. Goldsmith, Boston, for town of Aquinnah & others.

Mark J. Lanza, for Martha's Vineyard Commission.

Patricia Crowe, Boston, & Brooke Skulley, Westborough, for Boston Gas Company & others.

Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

457 Mass. 665

In 2005, the Energy Facilities Siting Board (siting board), acting pursuant to G.L. c. 164, § 69J (§ 69J), approved the petition of Cape Wind Associates, LLC (Cape Wind), to build and operate two 115 kilovolt underground and undersea electric transmission cables or lines (transmission project, or transmission lines) that would connect Cape Wind's proposed offshore wind-powered energy generating facility (wind farm) to the regional electric power grid. This court affirmed the siting board's decision.

457 Mass. 666

Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 448 Mass. 45, 56, 858 N.E.2d 294 (2006) ( Alliance I ). Actual construction of the transmission lines, however, requires additional permits, licenses, and approvals from a number of different State and local authorities.

In 2007, the Cape Cod Commission (commission) denied Cape Wind's proposed development of regional impact (DRI); approval of the DRI by the commission was one of the required “approvals” for the transmission project. Soon thereafter, Cape Wind applied to the siting board pursuant to G.L. c. 164, § 69K (§ 69K), for a “certificate of environmental impact and public interest” (certificate, or § 69K certificate) that would constitute a “composite” of the “individual permits, approvals or authorizations which would otherwise be necessary for the construction and operation” of the transmission project. Id. After conducting an adjudicatory proceeding, the siting board granted the requested certificate in May, 2009. Three of the interveners in the certificate proceeding appeal from the siting board's decision pursuant to G.L. c. 164, § 69P, and G.L. c. 25, § 5: the Alliance to Protect Nantucket Sound (Alliance), the commission, and the town of Barnstable (Barnstable) (collectively, petitioners). They seek reversal of the decision, and also request that we declare invalid a regulation of the Department of Environmental Protection (DEP). We affirm the decision of the siting board and conclude that the challenged regulation is valid.

Background. ⁵ Cape Wind plans to construct a wind farm consisting of 130 wind turbine generators, each 440 feet tall, on Horseshoe Shoal in Nantucket Sound, a location that is more than three miles from any Commonwealth coast and entirely in Federal waters. As a result, the wind farm itself requires only Federal permits. However, the transmission lines at issue in this case, which Cape Wind proposes to

932 N.E.2d 792

build to connect the wind farm to the regional power grid, will pass under Massachusetts territorial waters in Lewis Bay and Nantucket Sound for approximately six miles and therefore require State and local permits, licenses, and approvals for their construction and operation. The

457 Mass. 667

transmission lines-two cables, each comprised of three copper conductors and one fiber optic cable bundled together-will carry electricity across an approximately 18.4 mile route, running under the seabed through Nantucket Sound and Lewis Bay for 12.5 miles, coming ashore in the town of Yarmouth (Yarmouth), and continuing underground for 5.9 miles through Yarmouth and Barnstable to an existing switching station in Barnstable.

Cape Wind's efforts to secure the necessary Federal and, of greater significance here, State and local regulatory approvals for its wind farm and transmission project have a lengthy history. In November, 2001, Cape Wind began to seek the permits required for the transmission project by filing an expanded environmental notification form (ENF) with the Executive Office of Energy and Environmental Affairs (EOEEA). The filing set in motion a joint review by the EOEEA under the Massachusetts Environmental Protection Act (MEPA), ⁶ and by the commission under § 12(i) of St.1989, c. 716, “An Act establishing the Cape Cod commission” (Cape Cod Act). Cape Wind stated in the ENF that it sought a DRI approval from the commission. After holding a public hearing, the Secretary of the EOEEA determined that the transmission project would require Cape Wind to file an environmental impact report (EIR) in order to comply with MEPA, and outlined

457 Mass. 668

the scope of the joint DRI-EIR review. Pursuant to a memorandum of understanding with the EOEEA, the commission held public hearings and submitted comment letters to provide input for the MEPA review.

In 2002, Cape Wind sought permission from the siting board pursuant to § 69J, to construct the transmission lines. ^{7 , 8} “The

932 N.E.2d 793

approval of the [siting] board is required prior to the commencement of construction of any ‘facility’ ^{[ 9 ]} ... in the Commonwealth, and no State agency may issue a construction permit for any such facility unless the petition to construct the facility has already received approval from the [ siting] board.” Alliance I, 448 Mass. at 46-47, 858 N.E.2d 294, citing § 69J. Following a three-year review, the siting board approved construction of the transmission line facility under § 69J in 2005, ¹⁰ a decision this court affirmed in 2006. See id. at 56, 858 N.E.2d 294.

457 Mass. 669

In March, 2007, the Secretary of the EOEEA issued a final environmental impact report, finding the transmission project in compliance with MEPA. Cape Wind then renewed its efforts to obtain DRI approval from the commission. In deciding whether to grant such approval under the Cape Cod Act, St.1989, c. 716, the commission assesses whether a project complies with minimum performance standards (MPS) set forth in its regional policy plan (RPP), a county ordinance enacted under the Barnstable County Home Rule Charter. St.1988, c. 163.

In its review of Cape Wind's DRI application, the commission first deemed it incomplete for failure to include certain engineering plans and proof of control of the property along the transmission line route. Nevertheless, the commission held three days of public hearings in May, 2007, and after receiving additional information from Cape Wind, found the application complete as of August 3, 2007. The commission closed public hearings on August 8, 2007, triggering, under § 13(a) of the Cape Cod Act, a sixty-day period for the commission to make a decision, in the absence of which Cape Wind's DRI application would receive constructive approval. The commission held additional public hearings in September, 2007, and sought still more information. At the commission's request, on September 11, 2007, Cape Wind agreed to extend the decision deadline to October 21, 2007, and provided responses to the specific information requests. On October 18, 2007, the commission denied the DRI application “without prejudice” on grounds that Cape Wind had not submitted the full body of information that it had sought and that Cape Wind would not agree to another extension of the decision deadline. ^{11 , 12}

932 N.E.2d 794

Cape Wind did not appeal from the DRI decision, but in November, 2007, filed an initial petition with the siting board

457 Mass. 670

to obtain a § 69K certificate. ¹³ See 980 Code Mass. Regs. § 6.00 (1993). As previously indicated, such a certificate, if issued, serves as “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. Cape Wind requested that the certificate include the equivalent of the necessary DRI approval by the commission, and eight additional State and local permits. Among the eight was a tidelands license under G.L. c. 91 (c. 91); tidelands licenses are generally within the regulatory jurisdiction of DEP. See c. 91, § 14. ¹⁴

In December, 2007, Cape Wind filed a formal certificate application, which the siting board consolidated with Cape Wind's initial petition. See G.L. c. 164, § 69L; 980 Code Mass. Regs. §§ 6.02, 6.03. The siting board granted intervener status to the five government entities with permits at issue-Barnstable, Yarmouth, DEP, the Executive Office of Transportation and Public Works, and the commission; and to three nonprofit

457 Mass. 671

organizations-Conservation Law Foundation, Clean Power Now, Inc., and the Alliance. See G.L. c. 164, § 69N. ¹⁵ From August through October,

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2008, the parties conducted written discovery. Cape Wind, the commission, and DEP each submitted prefiled testimony of witnesses. Also before the siting board were 330 exhibits, consisting mainly of responses to information requests. ¹⁶ The siting board's presiding officer held two days of hearings, during which witnesses whose direct testimony...