Vineyard Homeowner’s Appeal Of Cape Wind Project Fails

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By: Michael C. Bailey
Published: 05/11/12

Another court challenge against Cape Wind has failed.

On Wednesday the Massachusetts Supreme Judicial Court rejected an appeal by Thomas M. Melone, a 13-year summer resident of Edgartown, who nearly two years ago was denied an opportunity to formally intervene in a state review of a business deal between Cape Wind and National Grid.

In August 2010 Mr. Melone filed an appeal of the Massachusetts Department of Public Utilities’ approval of a long-term power purchase agreement between Cape Wind and National Grid. Under that 15-year deal, Cape Wind would sell half its power to National Grid at a starting rate of 20.7 cents per kilowatt hour (cents/kWh).

National Grid serves Nantucket, but not Martha’s Vineyard, which proved a factor in the SJC’s decision.
Mr. Melone, chief executive officer of the New York-based Allco Renewable Energy Limited, petitioned the DPU in June 2010 to intervene in the proceedings but was denied, prompting his appeal with the SJC.

In his appeal, Mr. Melone referred to Cape Wind’s “well-documented and specific and substantial alteration of the direct viewscape from Melone’s property” and said the project would negatively impact the view on Nantucket Sound from his home and reduce the property’s value.

He also argued that the wind farm could push contaminants onto his beachfront property. “Melone raised the likelihood of oil or other contaminant leaks from the Cape Wind Project as specifically and substantially affecting Melone,” the appeal read, adding that the US Department of the Interior’s Bureau of Ocean Energy Management Regulation and Enforcement (BOEMRE) “clearly indicates there is a high probability that any such leak would find its way to Melone’s property.”

The SJC rejected his arguments, based on the fact the DPU’s decision dealt only with “the cost effectiveness of the power purchase agreements” between Cape Wind and National Grid, and not environmental issues.

“At issue is whether Melone had standing to intervene in a proceeding before the [DPU]…and then to seek judicial review of the department’s approval of an agreement between the Massachusetts Electric Company and Nantucket Electric Company (collectively, National Grid) to purchase power from Cape Wind Associates,” read the slip opinion for the case.

“The [DPU] has wide discretion to grant, limit, or deny a person leave to intervene,” the SJC stated in its opinion. “The department was well within its broad discretion in denying Melone’s request to intervene in this matter. The proceeding before the department concerned the cost effectiveness of the power purchase agreements. The environmental and other concerns raised by Melone, even assuming Melone would be ‘substantially and specifically affected’ by them…were beyond the scope of the proceeding.”

“Nothing [in state statute] requires the department to address the environmental and visual effects of a renewable energy generating source,” the SJC state. “Nor does Melone’s claimed status as a ratepayer (even if he were a National Grid ratepayer) give him any particularized interest entitling him to intervene in this matter, especially where the Attorney General has intervened to represent ratepayers’ interests.”

Mark Rodgers, director of communications for Cape Wind, said simply of this development, “We wish Mr. Melone well.”

Mr. Melone said Wednesday that he could not comment as he had not reviewed the SJC’s ruling.

According to Mr. Rodgers, Cape Wind now has only one remaining court challenge, an appeal of the US Department of the Interior’s (DOI) 2010 decision to approve the project that combines multiple individual challenges into a single case.

“Mark Rodgers is mistaken,” Audra Parker, president and CEO of the Alliance to Protect Nantucket Sound, said. “Cape Wind has numerous legal and financial challenges facing them.”

Ms. Parker said there are “five federal lawsuits that have been filed” against the DOI, BOEMRE, the US Coast Guard, the US Army Corps of Engineers, the National Marine Fisheries Service, and the US Fish and Wildlife Service.

Aside from the Alliance, the plaintiffs in those cases include the Wampanoag Tribe of Aquinnah, the Martha’s Vineyard Commercial Fishermen’s Association, Public Employees for Environmental Responsibility, Three Bays Preservation, and the Town of Barnstable. “The cases are in federal court in DC and they are awaiting a briefing schedule,” Ms. Parker said.

One upcoming event of note that is scheduled, according to Ms. Parker, is the DPU’s public hearing on a proposed power supply agreement between Cape Wind and NStar. That hearing will be held in the Knight Auditorium of Barnstable High School on Wednesday, May 23, starting at 7 PM.

NStar in March filed with the DPU a proposed 15-year power purchase agreement worth $1.6 billion, under which NStar would purchase 27.5 percent of Cape Wind’s power at a cost of 18.7 cents/kWh, more than double the current residential market rate of 7.928 cents/kWh—although Ms. Parker claims the starting rate would be 22 cents/kWh, and other media reports placed the starting rate at 19.8 cents/kWh.

NStar expects to pay $940 million above market rates during that 15-year period, which is expected to translate to a $1.08-per-month increase in a typical NStar customer’s monthly electric bill.

Ms. Parker noted that NStar plans to request a rate decrease from the state to reflect a reduction in natural gas prices. Beginning July 1, NStar will drop its residential rate to 6.699 cents/kWh, its lowest rate since 2004, the company stated in a press release.

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