Académique Documents
Professionnel Documents
Culture Documents
Iva ia*
Abstract: This Note analyzes administrative and judicial challenges to Cape
Wind, a 180-turbine offshore wind farm proposed for construction in federal
waters close to Massachusetts Cape Cod and the islands of Martha's
Vineyard and Nantucket. It examines the opposition to Cape Wind through
the lens of adversarial legalism, a term coined by Professor Robert Kagan
to describe the uniquely American adversarial style of implementing
regulations and resolving disputes. This Note outlines the extensive
permitting processes surrounding Cape Wind. It analyzes the impact of the
delay in permitting on environmental justice efforts, and its contribution to
our inability to fully ameliorate negative consequences of global warming.
This Note suggests that the courts, when faced with special interest
opposition to renewable energy projects that have received administrative
approvals, should show high deference to agency decisions on renewable
energy projects.
I. INTRODUCTION
The United States Department of Energy reports that, despite the
development and utilization of renewable energy resources such as solar or
nuclear power, 85% of energy needs in our country are currently met with
fossil fuels in the form of coal, oil, and natural gas.1 Fossil fuels provide
nearly two-thirds of the countrys electricity and comprise almost all of the
transportation fuels used.2 Yet, very few issues are as prominent and as
* Candidate for Juris Doctor, New England School of Law (2008); B.A., Philosophy
and History of Mathematics and Science, St. John's College (2001).
1. United States Department of Energy: Fossil Fuels, http://www.doe.gov/
energysources/fossilfuels.htm (last visited Apr. 19, 2008).
2. Id.
591
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3. A British government report recently suggested that the failure to act on global
warming within a decade could cost our society $6.98 trillion by the end of the century.
Andrew C. Revkin, British Government Calls for Broad Effort on Climate Issues, N.Y.
TIMES, Oct. 30, 2006, at A15, available at 2006 WLNR 18796035. Mainstream media has
been reporting on topics like energy conservation and resource protection with increasing
frequency. See, e.g., Jerry Adler, Going Green: With Windmills, Low-Energy Homes, New
Forms of Recycling and Fuel-Efficient Cars, Americans Are Taking Conservation into Their
Own Hands, NEWSWEEK, July 17, 2006, at 42, available at http://www.newsweek.com/id/
45856. An Inconvenient Truth, a documentary film about former Vice President Al Gores
series of lectures on global warming, met with great success at box-offices nationwide. See
Karen Tumulty, Lights, Camera, Al Gore!, TIME, June 5, 2006, at 24, available at
http://www.time.com/time/magazine/article/0,9171,1198888,00.html; see also AN
INCONVENIENT TRUTH (Paramount Pictures 2006).
4. See generally WORKING GROUP I OF THE INTERGOVERNMENTAL PANEL ON CLIMATE
CHANGE, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS: SUMMARY FOR
POLICYMAKERS 5-9 (2007) [hereinafter IPCC REPORT], available at http://
www.aaas.org/news/press_room/climate_change/media/4th_spm2feb07.pdf (arguing that
the emissions of carbon-dioxide due to human activities have contributed to and will further
lead to decreased snow and ice caps, increased risks of draughts, floods, monsoons, and an
increase in sea levels worldwide). IPCC is a United Nations network of over 2,000
international scientists. Scientists Urge Global Action on Clean Energy, N.Y. TIMES, Feb.
28, 2007, at A8, available at 2007 WLNR 3825603; see also Anthony Mitchell, Expert Says
Oceans Are Turning Acidic, WASH. POST, Nov. 10, 2006, available at
http://www.washingtonpost.com/wpdyn/content/article/2006/11/09/AR2006110900973.htm
l; Jeff Barnard, Persistent Dead Zone off Oregon Coast Linked to Global Warming, USA
TODAY, Oct. 31, 2006, http://www.usatoday.com/weather/climate/2006-10-31-oregon-
deadzone_x.htm. Many members of the scientific community also believe that warmer
weather is responsible for stronger hurricanes, like Hurricane Katrina that hit Louisiana and
Mississippi in the summer of 2005. Bret Schulte, A Storm over Warming: Are Hurricanes
Linked to Global Warming?, U.S. NEWS & WORLD REP., Sept. 5, 2006, at 49, available at
http://www.usnews.com/usnews/news/articles/060827/4storm_print.htm.
5. Top Scientists Warn of Water Shortages and Disease Linked to Global Warming,
N.Y. TIMES, Mar. 12, 2007, at A11, available at 2007 WLNR 4628123.
6. Id.
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7. See generally Samantha Levine, Trouble in the Air, U.S. NEWS & WORLD REP., Apr.
19, 2004, at 37, available at http://www.usnews.com/usnews/news/articles/040419/
19raleigh_print.htm.
8. See United States Environmental Protection Agency, Oil Spills,
http://www.epa.gov/oilspill/oilprofs.htm (last visited Apr. 19, 2008) (discussing methods of
EPA prevention and protection).
9. For example, the Arctic National Wildlife Refuge in Alaska has been subject to
Congressional debates for decades, due to the attempts by the fossil fuel industry to open the
refuge to gas and oil development. See generally U.S. FISH AND WILDLIFE SERV., POTENTIAL
IMPACTS OF PROPOSED OIL AND GAS DEVELOPMENT ON THE ARCTIC REFUGES COASTAL
PLAIN: HISTORICAL OVERVIEW AND ISSUES OF CONCERN, http://library.fws.gov/Pubs7/
arctic_oilandgas_impact.pdf (last visited Apr. 19, 2008). The Refuge is Americas finest
example of an intact, naturally functioning community of arctic/subarctic ecosystems. Id. at
5. The political pressure on the refuge stems from the fact that, according to estimates, it
contains close to two billion barrels of oil. See id. at 4-5.
10. See George W. Bush, President of the U.S., Remarks at the National Renewable
Energy Conference in St. Louis, Missouri, 42 WKLY. COMP. OF PRES. DOC. 1802 (Oct. 12,
2006), available at http://www.gpoaccess.gov/wcomp/v42no41.html (follow Missouri,
National Renewable Energy Conference in St. Louis).
11. See George W. Bush, President of the U.S., State of the Union Address by the
President, 42 WKLY. COMP. OF PRES. DOC. 145, 150 (Jan. 31, 2006), available at
http://www.gpoaccess.gov/wcomp/v42no05.html (follow State of the Union).
12. See id.
13. See George W. Bush, President of the U.S., State of the Union Address by the
President, 43 WKLY. COMP. OF PRES. DOC. 57, 59-60 (Jan. 23, 2007), available at
http://www.gpoaccess.gov/wcomp/v43no4.html (follow State of the Union) (America is
on the verge of technological breakthroughs that will enable us to live our lives less
dependent on oil. And these technologies will help us be better stewards of the environment,
and they will help us to confront the serious challenge of global climate change.).
14. See Gov. Arnold Schwarzenegger, Exec. Order S-01-07 (Jan. 18, 2007), available at
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23. See Alliance to Protect Nantucket Sound: About Us: Our Position,
http://www.saveoursound.org/site/PageServer?pagename=About_Us_Mission (last visited
May 8, 2008).
24. Telephone Interview with Dennis Duffy, Vice President, Energy Mgmt. Inc., in
Boston, Mass. (Jan. 23, 2006) [hereinafter Duffy Interview].
25. Michael Jonas, Kennedys Wind Farm Move Yields Local Heat, BOSTON GLOBE,
May 28, 2006, at City Weekly 6, available at 2006 WLNR 9359838.
26. Nick Blenkey, Was Bobby Kennedy on the Wrong Boat?, MARINE LOG, Oct., 2005,
at 4, available at 2005 WLNR 18419390.
27. The Alliances funds range in millions of dollars. See Jay Fitzgerald, Cape Wind
Farm Opponents Blow up $600G Deficit, BOSTON HERALD, Oct. 16, 2004, at 18, available
at 2004 WLNR 1136492.
28. See, e.g., Editorial, Cash for Clean Energy, BOSTON GLOBE, Oct. 23, 2006, at 10A,
available at 2006 WLNR 23400978.
29. See Jonas, supra note 25; see also Ten Taxpayers Citizens Group v. Cape Wind
Assoc., 373 F.3d 183 (1st Cir. 2004) (noting how a local group opposed to Cape Wind
unsuccessfully appealed the district court's failure to remand the case to the state court),
affg 278 F. Supp. 2d 98 (D. Mass. 2003), cert. denied 543 U.S. 1121 (2005).
30. Robert F. Kennedy, Senator Kennedys nephew, a prominent environmental lawyer
and a Cape Wind opponent, articulates some of the arguments against the wind farm, such
as the threat to avian population and local fishing industry. See Robert F. Kennedy, Jr., Op-
Ed., An Ill Wind off Cape Cod, N.Y. TIMES, Dec. 16, 2005, at A41, available at 2005
WLNR 20281168. But see Beth Daley, Audubon Review Supports Wind Farm: Threat to
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far less attractive part of Massachusetts might become the site of a diesel-
fueled power plant.31 Energy Management Ltd., the same energy company
that is behind Cape Wind, has proposed a diesel-powered, 240-megawatt
power plant in Chelsea, a predominantly blue-collar town just outside of
Boston.32 At least one local organization33 is strongly opposed to the power
plant, which would be sited close to a local elementary school.34 Despite
the absence of any direct causal link between the inability to construct
Cape Wind and the need for the Chelsea plant, the impossibility of
constructing a wind-powered facility offshore undoubtedly necessitates the
construction of dirtier power plants elsewhere, simply because the states
energy needs will continue to grow.
The controversy surrounding Cape Wind therefore raises the issues of
environmental justice,35 Not-In-My-Back-Yard (NIMBY) syndrome,36 and
makes us question what is a desirable level of input from the general public
and local residents in the siting of renewable energy facilities.
In Part II, this Note explains the relationship between carbon-dioxide
emissions and climate change caused by global warming. This Note
demonstrates the need for renewable energy facilities, such as Cape Wind,
and describes the environmental record of wind projects. It also addresses
the NIMBY aspects of the struggle surrounding Cape Wind and the
environmental justice issues, which are aggravated by the inability to site
renewable energy projects of Cape Winds magnitude. In Part III, this Note
Birds Is Less than Feared, Group Finds, BOSTON GLOBE, Mar. 29, 2006, at A1, available at
2006 WLNR 5237579.
31. Beth Daley, Diesel Plant Proposed for Chelsea, BOSTON GLOBE, Jul. 3, 2006, at B1,
available at 2006 WLNR 11470534.
32. Id. It is fair to note here that, while still a much dirtier source of power than a wind
farm, the plant proposed for Chelsea would run on low-sulfur fuel and therefore have fairly
low emissions. See Business in Brief, BOSTON GLOBE, Dec. 19, 2006, at 2D, available at
2006 WLNR 23402564.
33. See Katheleen Conti, Plants Foes Aim Anger at City Chief, BOSTON GLOBE, Sept.
14, 2006, at A1, available at 2006 WLNR 16262104. The group mentioned in the article is a
community organization that focuses on the protection of Chelseas environment and green
spaces. See Chelsea Collaborative: Chelsea Green Space and Recreation Comm.,
http://www.chelseacollab.org/programs/cgsrc.html (last visited Apr. 19, 2008).
34. See Conti, supra note 33.
35. Environmental justice is a notion that all individuals, regardless of their race,
income, social, or economic status, have the same right to live in communities free of
environmental hazards. See, e.g., U.S. Envtl. Protection Agency: Envtl. Justice,
http://www.epa.gov/environmentaljustice/ (last visited Apr. 19, 2008); see also EXEC.
OFFICE OF ENVTL. AFFAIRS, ENVIRONMENTAL JUSTICE POLICY OF THE EXECUTIVE OFFICE OF
ENVIRONMENTAL AFFAIRS 2 (2002) [hereinafter EOEA EJ POLICY], available at
http://www.mass.gov/envir/ej/pdf/EJ_Policy_English_Full_Version.pdf.
36. See infra notes 84-98 and accompanying text.
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outlines the permitting process behind Cape Wind, and offers an overview
of the judicial battles that have so far accompanied agency actions on Cape
Wind. This Note then presents the Cape Wind controversy from the
adversarial legalism perspectiveemphasizing the problem that emerges
when projects essential and beneficial to the greater public are hindered by
protracted legal battles in courts and administrative agencies. It analyzes
two potential solutions to this problem: 1) restricting court access to
lawsuits that tend to delay renewable energy projects, and 2) relying on the
courts to, pursuant to the Chevron doctrine,37 exercise deference to the
governments permitting and licensing of renewable energy projects when
faced with external attacks on their validity.
Rather than offer a conclusive solution to the siting problems faced by
Cape Wind and similar renewable energy facilities, this Note presents two
effective, yet equally problematic solutions. It suggests that, in light of the
global risks caused by continuing dependence on fossil fuels, it is essential
for the courts to defer to agency decisions when reviewing challenges to
renewable energy projects by special interest groups. Additionally, it
suggests that state and federal legislatures should pass laws granting more
finality to agency determinations thus restricting judicial access for claims
brought to delay or discourage renewable energy projects.
The ultimate goal of this Note, however, is to draw attention to and
invite further debate on the problem presented by administrative delays of
projects that are necessary to avert a potential global crisis.
II. BACKGROUND
37. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984) (establishing a test under which courts exercise deference to agency decisions), revg
685 F.2d 718 (D.C. Cir. 1982).
38. American scientist Charles Keeling was the first to alert the scientific community to
the increasing concentrations of carbon-dioxide in the atmosphere by taking measurements
in Mauna Loa, Hawaii, from 1958 onwards. See Obituary of Charles Keeling, DAILY
TELEGRAPH, June 24, 2005, at 25, available at 2005 WLNR 9977267. The concentration of
carbon-dioxide is currently at roughly 380 parts per million, the highest it has been in at
least 400,000 years. Id.
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39. See Andrew C. Revkin, Agency Affirms Human Influence on Climate, N.Y. TIMES,
Jan. 10, 2007, at A16, available at 2007 WLNR 438378.
40. While global warming refers to the temperature rise, climate change encompasses all
the effects of the warming on public health and welfare. See, e.g., Union of Concerned
Scientists, Hurricanes and Climate Change, http://www.ucsusa.org/global_warming/science
/hurricanes-and-climate-change.html (last visited Apr. 19, 2008); see also supra notes 3-6
and accompanying text.
41. See generally IPCC REPORT, supra note 4.
42. Natl Res. Def. Council: Consequences of Global Warming,
http://www.nrdc.org/globalWarming/fcons.asp (last visited Apr. 19, 2008); see also supra
note 5 and accompanying text.
43. See, e.g., Dorothea Sugiri et al., The Influence of Large-Scale Airborne Particle
Decline and Traffic-Related Exposure on Childrens Lung Function, 114 ENVTL. HEALTH
PERSP. 282, 282 (2006); Aaron J. Cohen & C. Arden Pope III, Lung Cancer and Air
Pollution, 103 ENVTL. HEALTH PERSP. 219, 223 (Supp. 8) (1995) (suggesting that
combustion-caused air pollution contributes to lung cancer incidence among general
population).
44. Press Release, Cal. Envtl. Prot. Agency Air Res. Bd., Study Links Air Pollution and
Asthma (Jan. 31, 2002), available at http://www.arb.ca.gov/newsrel/nr013102.htm; see also
Manny Fernandez, A Study Links Trucks Exhaust to Bronx Schoolchildrens Asthma, N.Y.
TIMES, Oct. 29, 2006, at 131, available at 2006 WLNR 18761266.
45. Penny Loeb, Shear Madness (West Virginia Coal Mining), U.S. NEWS & WORLD
REP., Aug. 11, 1997, at 26, available at 1997 WLNR 4606987.
46. Id.
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fishing industry, the farms noise and visual disturbances, risks to avian
population, and a threat to the local tourist industry as the reasons to
oppose Cape Wind.61 The main thrust of Kennedys argument is: place the
wind farm farther from the coast, and outside of Nantucket Sound, if and
when the technology allows for that.62
Cape Wind is not the only wind project that has encountered
opposition by environmentalists. A terrestrial wind farm in Altamont Pass,
California, sparked controversy and launched a number of lawsuits after it
caused a great number of bird kills, including red-tailed hawks and
federally protected golden eagles.63 On the other hand, the American Wind
Energy Association, a wind energy trade group, points out that most wind
farms have very little negative impact on bird population, and that the
overall impact of wind projects on wildlife is dwarfed by the impact on
wildlife and the environment from fossil-powered energy sources.64 The
noise and visual impact arguments raised by Cape Wind opponentsif
aesthetic objections can even be taken seriously when compared to the
concerns surrounding climate changeare counteracted by the fact that the
Cape Wind turbines will appear to be no taller than one-half of an inch
from the closest beach on the clearest day, and that the farm will generally
be farther from the nearest home than any other generating facility in
Massachusetts.65
Avi Brisman, The Aesthetics of Wind Energy Systems, 13 N.Y.U. ENVTL. L.J. 1, 77 (2005)
(comparing visual impacts of smokestacks and windmills).
66. Howe, supra note 17.
67. See generally Daniel R. Faber & Eric J. Krieg, Unequal Exposure to Ecological
Hazards: Environmental Injustices in the Commonwealth of Massachusetts, 110 ENVTL.
HEALTH PERSP. 277 (Supp. 2 2002) (documenting income-based and racially-based biases to
the geographic distribution of environmentally hazardous sites and industrial facilities in
Massachusetts) [hereinafter Faber & Krieg Report].
68. See id. at 286-87; see also supra note 35.
69. See Faber & Krieg Report, supra note 67, at 286-87.
70. Fernandez, supra note 44.
71. See Loeb, supra note 45.
72. Faber & Krieg Report, supra note 67, at 284.
73. Id.
74. Id.
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75. See Dennis J. Duffy, Letter to the Editor, Cape Wind and NIMBY Groups, WASH.
TIMES, Oct. 27, 2006, at A18, available at 2006 WLNR 18679139.
76. Official Site of the Town of Oak Bluffs, MA, http://www.ci.oak-bluffs.ma.us/about-
oakbluffs.shtml (last visited Apr. 19, 2008).
77. Daley, supra note 31.
78. CHELSEA DEPT OF PLANNING AND DEV., 2000 CENSUS PROFILE: DEMOGRAPHIC,
HOUSING, ECONOMIC AND SOCIAL CHARACTERISTICS 3 (2004), available at
http://www.chelseama.gov/Public_Documents/ChelseaMA_Planning/PublicationsFolder/20
00CensusReport.pdf.
79. See Faber & Krieg Report, supra note 67, at 285-86.
80. Id. at 286-87 (Massachusetts needs to develop and implement a plan to reduce
these disparities for ecologically overburdened communities . . . . ).
81. See id.
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82. See DANIEL R. FABER & ERIC J. KRIEG, PHILANTHROPY AND ENVTL. JUSTICE
RESEARCH PROJECT NORTHEASTERN UNIV.: UNEQUAL EXPOSURE TO ECOLOGICAL HAZARDS
2005: ENVIRONMENTAL INJUSTICES IN THE COMMONWEALTH OF MASSACHUSETTS 54-55
(2005), available at http://www.environmentalleague.org/images/UnequalExpRep05.pdf.
83. Id. at 1 (In order to bolster profits and competitiveness, industry typically adopts
pollution strategies which are not only more economically efficient but that also offer the
path of least political resistance.).
84. Risks and costs of many projects, like effects on human health, environment, or
property value, are geographically concentrated, while their benefits are widely dispersed.
See Michael E. Kraft & Bruce B. Clary, Citizen Participation and the NIMBY Syndrome:
Public Response to Radioactive Waste Disposal, 44 W. POL. Q. 299, 300 (1991).
85. Barak D. Richman & Christopher Boerner, A Transaction Cost Economizing
Approach to Regulation: Understanding the NIMBY Problem and Improving Regulatory
Responses, 23 YALE J. ON REG. 29, 37 (2006).
86. Editorial, Cash for Clean Energy, BOSTON GLOBE, Oct. 23, 2006, at 10A, available
at 2006 WLNR 23400978.
87. See Kraft & Clary, supra note 84, at 300-01.
88. Id.
89. Janice C. Griffith, Regional Governance Reconsidered, 21 J.L. & POL. 505, 519
(2005).
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90. Sheryll D. Cashin, Localism, Self-Interest and the Tyranny of the Favored Quarter:
Addressing Barriers to New Regionalism, 88 GEO. L.J. 1985, 1998 (2000) (citing Joseph P.
Viteritti, Municipal Home Rule and the Conditions of Justifiable Secession, 23 FORDHAM
URB. L.J. 1, 9 (1995)).
91. Mark Seidenfeld & Janna Satz Nugent, The Friendship of the People: Citizen
Participation in Environmental Enforcement, 73 GEO. WASH. L. REV. 269, 269 (2005).
92. See, e.g., MASS. GEN. LAWS ANN. ch. 164, 69P (West 2003) (providing judicial
review to any party aggrieved by a decision of the Massachusetts Energy Facilities Siting
Board, a body responsible for approving energy facilities siting in the Commonwealth).
93. See Robert A. Kagan, Adversarial Legalism and American Government, in THE NEW
POLITICS OF PUBLIC POLICY 88, 93 (Marck K. Landy & Martina A. Levin eds., 1995)
[hereinafter Kagan Essay] (arguing that access to courts in the form of adversarial legalism
has helped political underdogs in obtaining justice from the government). See generally
Faber & Krieg Report, supra note 67.
94. In Massachusetts and elsewhere, non-profit organizations provide free legal and
policy advice to indigent citizen groups, and many law firms work with these groups on pro
bono basis. See, e.g., Alternatives for Community and Environment, Services Program,
http://www.ace-ej.org/services (last visited Apr. 19, 2008).
95. Cashin, supra note 90, at 2003-15 (arguing that outer-ring suburbs in American
metropolitan areas are favored quarters that have the power to exclude undesirable
entrants).
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III. DISCUSSION
96. See Michael B. Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495, 521-22
(1994) (concluding that the opposition to waste facilities by affluent neighborhoods results
in the perpetuation of old, substandard disposal units in high-minority neighborhoods).
97. See generally Brisman, supra note 65 (arguing that the visual impacts of wind
turbines are outweighed by the need for clean sources of energy).
98. Wind Facts, Profiles in Fundraising, http://windfacts.blogspot.com/2006/03/profiles-
in-fundraising.html (Mar. 31, 2006).
99. Cape Wind, Project at a Glance, http://capewind.org/article24.htm (last visited Apr.
19, 2008).
100. U.S. ARMY CORPS OF ENGINEERS, DRAFT ENVIRONMENTAL IMPACT STATEMENT:
EXECUTIVE SUMMARY 1.5.1, 1.5.3 (2004) [hereinafter DEIS EXECUTIVE SUMMARY],
available at http://www.nae.usace.army.mil/projects/ma/ccwf/section1.pdf.
101. Id. 1.5.2.
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102. Id.
103. Cape Wind, Project at a Glance, http://capewind.org/article24.htm (last visited Apr.
19, 2008).
104. Cape Wind, Project Siting and Visual Simulations, http://www.capewind.org/
article7.htm (last visited May 8, 2008).
105. Jay Fitzgerald, Poll Says Most in Mass. Want Cape Windmills, BOSTON HERALD,
June 8, 2006, at 36, available at 2006 WLNR 9854410.
106. See Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, 100
(D. Mass. 2003) (citing United States v. Maine (Maine I), 420 U.S. 515 (1975) and United
States v. Maine (Maine II), 475 U.S. 89 (1986)) (rejecting an argument by a citizen group
that federal law grants jurisdiction over non-fishing activities in the entire Nantucket Sound
fishery to Massachusetts), affd 373 F.3d 183 (1st Cir. 2004), cert. denied, 543 U.S. 1121
(2005).
107. See infra Part III.A.3.
108. Beginning in 1947, the Supreme Court established that the federal government has
exclusive rights to the lands under the sea. See Ten Taxpayers Citizen Group v. Cape Wind
Assocs., 373 F.3d 183, 188 (1st Cir. 2004), affg 278 F. Supp. 2d 98 (D. Mass. 2003), cert.
denied, 543 U.S. 1121 (2005). In 1953, Congress passed the Submerged Lands Act, which
gave costal states title to the seabed within three miles of their shores. Id.; see also 43
U.S.C. 1301 (2000). Congress also enacted that year the Outer Continental Shelf Lands
Act, which specified that federal law governs on the outer Continental Shelf, submerged
lands under U.S. control lying seaward of the three-mile boundary. Ten Taxpayers Citizen
Group, 373 F.3d at 188; see also 43 U.S.C. 1331 (2000).
109. See 33 U.S.C. 403 (2000) (authorizing the Corps to regulate obstructions to
navigation in navigable waters of the United States); Save Our Sound, Legal Concerns,
http://web.archive.org/web/20060514095724/http://www.saveoursound.org/Materials/legal1
pager.pdf (last visited Apr. 19, 2008).
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(The second draft EIS submitted to MMS in February will be responded to in MMS draft
that EIS [sic] expects will be released in April.).
119. See DANIEL A. FARBER ET AL., CASES AND MATERIALS ON ENVIRONMENTAL LAW 441
(7th ed. 2006).
120. 42 U.S.C. 4332(C) (2000).
121. Id.
122. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
123. FARBER ET AL., supra note 119, at 441-42.
124. 40 C.F.R. 1501.3, 1501.4 (2007).
125. Id. 1501.4(e)(1), 1508.9.
126. 42 U.S.C. 4342, 4344 (2000).
127. City of Waltham v. U.S. Postal Serv., 786 F. Supp. 105, 113 (D. Mass. 1992).
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EIS, and decides which issues will be discussed in the EIS.128 Under
NEPA, if a project requires review by multiple federal agencies, or federal
and state agencies, a lead agency may be designated to conduct the scope
of review.129 The scoping is followed by the Draft Environmental Impact
Statement (DEIS), a public review and comment period, Final
Environmental Impact Statement (FEIS), and finally the Record of
Decision (ROD).130
As a Massachusetts counterpart to NEPA, MEPA provides that state
agencies must ascertain the environmental impact of their projects and use
measures to minimize damage to the environment.131 MEPA review is
conducted by a state agency within the Executive Office of Environmental
Affairs (EOEA), through which the Secretary of Environmental Affairs
conducts review of projects requiring state permitting or licensing.132
MEPA requires a project proponent to file an Environmental Notification
Form (ENF) with the Secretary, on the basis of which the Secretary then
determines whether to request an Environmental Impact Report (EIR).133
In the case of Cape Wind, the Corps, as a designated lead agency,
submitted the scope of work for both ENF under MEPA and EIS under
NEPA.134 In 2004, following the scope of work, the Corps released a 3,800
page combined Draft EIS/EIR/DRI report.135
Prior to the issuance of the DEIS, there were opportunities for public
input on Cape Wind in the form of public hearings and public comment
periods.136 Public scoping hearings were held in Boston and West
Yarmouth, Cape Cod in March 2002, in Marthas Vineyard in April 2002,
and again on Cape Cod in November 2002.137 DEIS concluded that the
proposed site was economically, environmentally, and technically
preferable to two other Nantucket Sound alternatives
Monomoy/Handkerchief Shoal and Tuckerbuck Shoal.138 DEIS also
139. Id.
140. Id. 1.6.
141. Id.
142. Union of Concerned Scientists, Environmental Groups Weigh in on Cape Wind
DEIS, Feb. 24, 2005, http://www.ucsusa.org/news/press_release/environmental-groups-
weigh-in-on-cape-wind-deis.html (listing favorable responses by eight prominent
environmental groups, among them Conservation Law Foundation, National Resources
Defense Council, and Clean Power Now).
143. Id.
144. Press Release, Cape Wind, Cape Wind Files Final Environmental Impact Report
with the Commonwealth of Massachusetts (Feb. 20, 2007),
http://capewind.org/news758.htm.
145. In re Cape Wind Assocs., EFSB 02-2, 2005 WL 1264241, at *1 (Mass. E.F.S.C.
May 11, 2005), available at http://www.mass.gov/Eoca/docs/dte/siting/efsb02-2/cwfp1-
67.pdf.
146. Id. at *4.
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Taxpayers argued that Cape Wind was required to secure a state permit.169
The plaintiffs relied on the language of the 1983 amendment to a federal
act,170 arguing that it delegated authority over the entire Nantucket Sound
fishery to the Commonwealth of Massachusetts.171 Federal district Judge
Joseph Tauro, referring to the case as the first skirmish in an eventual
battle over the construction . . . of a windmill farm in Nantucket Sound,172
dismissed the complaint, concluding that nothing in the federal act granted
jurisdiction over non-fishing activities to the Commonwealth.173 The court
refused to extend the regulatory jurisdiction that exists under the
Magnuson-Stevens Act to non-fishing activities simply on the ground of
protecting fish.174
On appeal to the United States Court of Appeals for the First Circuit,
Ten Taxpayers argued that the district court should have remanded the case
to the state court for a lack of federal subject-matter jurisdiction, and it
challenged the dismissal of the complaint below.175 The lower court case
was initially filed by Ten Taxpayers in Barnstable Superior Court, but Cape
Wind removed it to the federal court, arguing that the questionwhether
Congress has delegated authority to Massachusetts under the Magnuson-
Stevens Actwas a federal question.176 The court of appeals rejected Cape
Winds position, stating that its argument that federal law does not
authorize Ten Taxpayers claims is simply a federal preemption
defense . . . . It is hornbook law that a federal defense does not confer
arising under jurisdiction.177 The court, however, found proper federal
jurisdiction on different groundscongressional incorporation of state law
on the outer Continental Shelf as federal lawand held that the case was
properly removed to the federal court.178 The court also decided that the
district court did not err in dismissing the complaint because the Outer
Continental Shelf Lands Act left no room for states to require permits or
169. Ten Taxpayers Citizen Group, 278 F. Supp. 2d at 99 (noting that the plaintiffs
argued that Cape Wind needed a license pursuant to Chapter 91 of Massachusetts General
Laws).
170. See generally Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. 1800 (2000).
171. Ten Taxpayers Citizen Group, 278 F. Supp. 2d at 100.
172. Id. at 99.
173. Id. at 101.
174. Id.
175. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 373 F.3d 183, 186 (1st Cir.
2004), affg, 278 F. Supp. 2d 98 (D. Mass. 2003), cert. denied, 543 U.S. 1121 (2005).
176. Id. at 186-87. In the alternative, Cape Wind argued that deciding Ten Taxpayers
state claims would require a resolution of a substantial question of federal law. Id. at 187.
177. Id. at 191.
178. Id. at 192-93.
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adversarial legalism has two main features: formal legal contestation and
litigant activism. Formal legal contestation refers to competing interests
and disputants [that] readily invoke legal rights, . . . and procedural
requirements, backed by recourse to formal law enforcement . . . and/or
judicial review.216 Litigant activism refers to a style of legal contestation
that is primarily dominated by disputing parties lawyers instead of
government officials or judges.217
Kagan argues that adversarial legalism derives from broader
American political traditions, attitudes, structural arrangements, and
interest group pressures.218 In essence, adversarial legalism reflects the
tension in our society between a demand for government protection from,
among other things, environmental dangers and an essential mistrust of
concentrated power.219 Such tension, in Kagans view, leads to limited and
fragmented governmental authority.220
On the one hand, Kagan notes that wide open access to courts is good:
it offers the ability to exercise a check on the arbitrary exercise of agency
power, leads to civic involvement, and helps the members of our society
who have less political power.221 Furthermore, the American legal and
political system values limited government and pluralistic democracy.222
Generally, adversarial legalism has enabled political underdogs to
challenge government in many key areas, such as racial equality or welfare
administration.223 On the other hand, Kagan argues that adversarial
legalism presents an equal opportunity weapon . . . invoked by the
misguided, the mendacious, and the malevolent . . . , and its procedures
make it possible to use the law as a weapon of extortion.224 When their
projects are challenged in the courts, proponents of projects are subjected
to increased lawyering costs, liability insurance,225 and, in the case of Cape
Wind, a possibility that any investor might withdraw when faced with the
prospect of endless lawsuits and appeals.226 Consequently, future investors
216. Id. at 9.
217. Id.
218. Id. at 15.
219. Id.
220. See id.
221. Kagan Essay, supra note 93, at 89.
222. Id. at 93.
223. Id.
224. Id.
225. Id. at 93-94.
226. Dennis Duffy, Vice President of Cape Wind, stated that every legal challenge by the
Alliance or some other group places the projects investments on hold until all the legal
hurdles are cleared. Duffy Interview, supra note 24. Also, see Kagans discussion of a
nuclear power plant in Seabrook, New Hampshire, that never lost on the merits, but whose
ZIZA. FINAL 5/9/2008 4:14:34 PM
sponsor finally gave up after the project went bankrupt in the face of repeated administrative
hearings, research projects, and court appearances. Kagan Essay, supra note 93, at 104.
227. The proximity of high-minority, low-income neighborhoods to environmental
hazards results, at least partially, from the tendency of private businesses and government
agencies to displace those burdens on working class families and communities of color. See
FABER & KRIEG, supra note 82, at 54.
228. Such as, for example, unequal distribution of environmental hazards. See, e.g.,
EOEA EJ POLICY, supra note 35.
229. See Kagan Essay, supra note 93, at 105.
230. See id.
231. Id. at 98-102.
232. See supra Part III.A.2.
233. Kagan Essay, supra note 93, at 99.
234. The groups challenging the dredging ranged from environmental groups to fishery
associations. See id. at 98-102.
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proposed dredging site, which, in Kagans view, was not the most
environmentally sound alternative.235
The Oakland case involved groups that challenged an economically
beneficial project with environmentalist arguments.236 Conversely, Cape
Wind is an environmentally beneficial and necessary project,237 challenged
on environmental grounds that pertinent government agencies, and most
environmental groups, have properly considered and determined to be
outweighed by the need for the project.238
251. In other words, agency employees are inherently mistrusted because of their close
ties to the regulated industry. See id. at 1282 ([T]he basic case for judicial review depends
on the proposition that foxes should not guard the henhouses. (citation omitted)). In the
environmental arena, the phenomenon of the revolving door is fairly commonagency
employees routinely leave the government field to work for the industries that they used to
regulate, while former industry employees often get high positions within the agencies that
regulate that same sector. See Opensecrets.org, Revolving Door: A Directory of People
Passing Between Government and the Private Sector, http://www.opensecrets.org/revolving/
(last visited Apr. 19, 2008).
252. Cross, supra note 241, at 1281.
253. Id. at 1294-95.
254. Id. at 1314.
255. Rick Klein, Opponents Say Cape Wind Had Sweetheart Deal: Energy Bill
Provision Granted Exemptions, Prevented Bidding, BOSTON GLOBE, May 5, 2006, at A3,
available at http://www.boston.com/news/nation/articles/2006/05/05/opponents
_say_cape_wind_had_sweetheart_deal/.
256. See Cross, supra note 241, at 1316.
257. See generally Donald R. Songer, The Circuit Courts of Appeals, in THE AMERICAN
COURTS: A CRITICAL ASSESSMENT 35, 50 (John B. Gates & Charles A. Johnson, eds., 1991).
258. For example, one of the Alliances most vocal board members and biggest donors is
William Koch, head of Oxbow Energy, an energy conglomerate, who also owns a summer
house overlooking Nantucket Sound. See William Koch, Tilting at Windmills, WALL ST. J.,
May 22, 2006, at A12, available at http://online.wsj.com/article/SB114825818
509759134.html see also Michael Levenson, Cape Projects Foes Tap Big Spenders,
BOSTON GLOBE, Apr. 1, 2006, at A1, available at http://www.boston.com/news
/local/massachusetts/articles/2006/04/01/cape_projects_foes_tap_big_spenders/ (noting that
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an unnamed contributor donated $850,000 to the Alliance, whose overall budget is in the
millions of dollars).
259. See supra note 243 and accompanying text.
260. See Kagan Essay, supra note 93, at 93 (commenting on the use of law as a weapon
of extortion).
261. Id.
262. Id. at 97.
263. Id. at 97, 109.
264. See, e.g., David J. Hayes & James A. Hourihan, NEPA Requirements for Private
Projects, 13 B.C. ENVTL. AFF. L. REV. 61, 70 (1985) (describing the misuse of NEPA even
by economic competitors to kill or delay projects subject to the statute).
265. See Sharon Buccino, NEPA Under Assault: Congressional and Administrative
Proposals Would Weaken Environmental Review and Public Participation, 12 N.Y.U.
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IV. CONCLUSION
Global warming and the consequent climate change are possibly the
greatest challenge faced by our generation in this century.288 In the absence
of, and in addition to, drastic, government-mandated caps on emissions of
carbon-dioxide,289 construction of renewable energy projects and the
283. Cross, supra note 241, at 1272 (citing Frank B. Cross & Emerson H. Tiller, Judicial
Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of
Appeals, 107 YALE L.J. 2155, 2175 (1998)).
284. Id.
285. See id. at 1273-74.
286. See generally 288 F. Supp. 2d 64 (D. Mass. 2003), affd, 398 F.3d 105 (1st Cir.
2005). As long as projects are stuck in courts, investors are likely to request that all appeals
be cleared before they proceed with the necessary funding to complete the project. Duffy
Interview, supra note 24.
287. See generally IPCC REPORT, supra note 4.
288. See supra Part II.A.
289. See supra notes 14-15 and accompanying text.
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gradual switch away from fossil fuels is the only solution to the current
climate crisis.290
Cape Wind, an offshore wind farm proposed for Nantucket Sound,
would satisfy approximately three-fourths of the electricity needs of Cape
Cod and the islands of Marthas Vineyard and Nantucket. The project,
which is subject to combined state and federal jurisdiction, has so far
received approvals from designated state and federal agencies.291 However,
it has also been a subject of great controversy due to a well-funded non-
profit organization, the Alliance to Protect Nantucket Sound, which has
battled the project in the media and in the courts.
Cape Wind is an example of a phenomenon known as adversarial
legalism, which refers to costly, drawn-out legal processes surrounding
permitting or some other administrative action.292 Two solutions present
themselves to solve the Cape Wind problem and other problems that are
likely to stem from future challenges to future offshore wind proposals.
The first one is restricting access to courts for groups that wish to challenge
administrative decisions regarding renewable energy projects.293 The
second is reliance on the courts to exercise deference to agency decisions
pursuant to the test established in Chevron U.S.A., Inc. v. Natural
Resources Defense Council.294 Restricting court access to those who
challenge administrative decisions on renewable energy projects, like
offshore wind farms, would grant finality to administrative decisions, but
this measure requires strong, independent, and respected bureaucracies, not
to mention an untenable modification of our political culture.295 This
atmosphere currently does not exist in the United States, where agencies
are mistrusted because of their strong ties with the industries they regulate
and the revolving doors phenomenon, whereby agency employees
routinely look forward to careers in the private sector, and former industry
executives staff high posts in agencies.296 The second solution to the
problem of siting offshore wind farms lies in the continuous reliance on the
courts to exercise required deference pursuant to the Chevron doctrine
articulated by the Supreme Court.297 The shortcoming to this approach rests
in the fact that the application of the Chevron deference may yield