Once More into the Breach for Cape Wind
Thursday, July 22, 2010
By: Patty Dineen

Akin Gump - Michael Blaisdell and Maka Hutson

Once More into the Breach for Cape Wind

July 21, 2010 8:26 AM in Project Permitting • Renewable Energy • US Law and Policy | Michael Blaisdell & Maka Hutson | ShareThis

On April 28, 2010, Secretary of the Interior Ken Salazar approved “Cape Wind,” a $1 billion, 130-turbine wind farm south of Cape Cod.  The announcement came nine years after the developer filed an initial permit application, and Secretary Salazar promised that in the future the “layers of review upon layers of review” responsible for the delay would be streamlined into a more “rational and orderly process.” It also came eight days after the Deepwater Horizon drilling rig accident in the Gulf of Mexico, and as the scale of that spill became apparent, clean energy advocates greeted this first federal approval of offshore wind as a positive, but belated, first step.

Opponents, however, simply vowed to keep fighting. On June 25, 2010 a coalition of six environmental groups and three individuals filed suit alleging that the Secretary’s approval violated the Endangered Species Act, Migratory Bird Treaty Act, National Environmental Policy Act, and Administrative Procedure Act, through various inadequacies in its consideration of project impacts on the roseate tern, piping plover and right whale. Officials have dismissed the suit as groundless, and the project’s developers have attacked the plaintiffs and their motives. Rancor and rhetoric have been abundant enough throughout the saga that Cape Wind has yielded both an acclaimed book and a soon-to-be-released feature film.

This is not the first lawsuit filed aimed at stopping Cape Wind from going forward, and almost certainly will not be the last. The Alliance to Protect Nantucket Sound has promised as much, with its executive director Audra Parker assuring the Boston Globe that although her organization is a plaintiff in the current lawsuit, “that is not to say we are not filing another.” Other groups not party to the current action, including the Mashpee Wampanoag Tribe and Wampanoag of Gay Head Tribes, have also threatened to sue.

All of which leaves those eager for an offshore wind farm to finally come online, and most of all developer Cape Wind Associates, LLC, optimistic but wary about the project’s prospects.

For each cause of action in the current complaint, only the standard six-year statute of limitations for suits against the United States applies, leaving a long window for groups like the Alliance to find flaws in the federal approval process and mount additional litigation. Even should none of these suits succeed, they may create enough uncertainty to delay construction and frustrate efforts to obtain financing.

Consideration of these concerns has led Congress to shorten the statute of limitation for some types of environmental challenge. The 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act, for example, requires NEPA challenges to highway projects to be filed within 180 days of a final agency decision.  State and local officials had pushed for this change, complaining that the longer statute of limitations had allowed chronic delays to critical road projects.

But with the full six-year period available here, no other judicial doctrine decisively bars the Cape Wind plaintiffs from, say, substituting an endangered warbler for the roseate tern, or a sea turtle for the right whale, and suing again several years from now under similar causes of action.

Courts occasionally recognize the equitable laches defense as a bar to this type of lawsuit. The Supreme Court has recognized that without equitable limits, judicial environmental review might become “a game or a forum to engage in unjustified obstructionism.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 553-54 (1978). But courts have generally disfavored the laches defense in environmental suits, even in instances where challenges are brought several years after project approval. See, e.g. Portland Audubon Society v. Lujan, 884 F.2d 1233, 1241 (9th Cir. 1989) (reversing and remanding district court’s dismissal of plaintiff’s non-NEPA claims due to inequitable delay); Park County Resource Council v. United States Department of Agriculture, 817 F.2d 609 (10th Cir. 1987) (overturning district court’s application of laches to bar plaintiffs’ NEPA claims by explaining that the “[m]ere lapse of time does not amount to laches”).  These courts have reasoned that because environmental cases often involve large-scale societal harms, the statutory period for prosecuting claims should be honored in full.

If environmental claims are identical to ones previously litigated, they would be barred under the doctrine of res judicata, which prevents parties from re-litigating suits arising out of the “same transactional nucleus of facts” that involve the same legal rights and interests. See, e.g., Littlejohn v. U.S., 321 F.3d 915 (9th Cir. 2003).  But a project the size of Cape Wind usually gives environmental plaintiffs a broad enough menu of legal issues to “plead around” a claim preclusion defense. Some courts have also extended the doctrine to bar suits that “could have been litigated,” or “in the exercise of reasonable diligence, should have been litigated,” in the original proceeding, meaning that a repeat plaintiff like the Alliance would like need a more substantive explanation for its delay in bringing the second suit. Cf. Rivet v. Regions Bank of Louisiana, 522 U.S. 470 (1998).

A suit by the tribes, of course, would not likely face such hurdles. Their potential claims, that the project would blight certain sunrise ceremonies, and would be constructed on a seabed that was once the dry land on which their ancestors lived and died, involve different rights and interests. 

Moreover, neither laches nor res judicata would apply to an Alliance suit against a different agency. In addition to Interior Department approval, the Cape Wind project required signoff from the Federal Aviation Administration, and the Alliance has already brought an administrative appeal to the FAA’s determination that the turbines pose no threat to area air traffic.  Should the FAA reject that challenge, the Alliance can, and most likely will, file yet another federal lawsuit.

All of which makes it a virtual certainty that the battle over Cape Wind will continue into a second decade. Perhaps those filmmakers should get to work on a sequel.

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