6 groups file first suit to halt wind farm

Allege ‘terrible toll’ on protected birds, whales

By Beth Daley
Globe Staff / June 26, 2010

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A legal challenge to the federal approval of Cape Cod’s proposed offshore wind farm was filed yesterday, the first of an expected flurry of lawsuits attempting to stop the construction of the 130-turbine project in Nantucket Sound.

Six groups, from California to Cape Cod, filed the suit in federal district court in Washington, arguing that the controversial project will “exact a terrible toll’’ on federally protected migratory birds and possibly whales. The 30-page lawsuit says federal officials failed to collect data on the project’s impact on bird migration and whales and refused to adopt protective measures for the rare roseate tern and piping plover.

“If there is a tinge of green on projects like mass transit or alternative energy, [people often] have a knee-jerk reaction it is all positive and this is simply not true,’’ said Kyla Bennett, a biologist and lawyer who is New England director of the Public Employees for Environmental Responsibility, one of the plaintiffs.

The developers of the project, Cape Wind Associates, said the lawsuits were expected and groundless.

“If Cape Wind was bad for birds, we wouldn’t have the support of Mass Audubon and if it was bad for whales, we wouldn’t have the support of Oceana and Greenpeace,’’ said Mark Rodgers, Cape Wind’s spokesman.

In addition to Bennett’s group, the plaintiffs include the Alliance to Protect Nantucket Sound, the lead opposition group to the wind farm; Cetacean Society International, a Connecticut whale preservation group; The Lower Laguna Madre Foundation, a South Texas environmental group that has come out against large-scale wind farms; Californians for Renewable Energy, whose website says it is in favor of wind, and Three Bays Preservation, a Cape Cod group dedicated to estuary preservation. Three citizens — Barbara Durkin, Cindy Lowry, and Martha Powers — also joined the suit.

The suit was filed two months after US Interior Secretary Ken Salazar gave final approval to the project, saying it would help usher in a new era of clean energy in America. An Interior Department spokeswoman declined to comment yesterday, as is their policy on litigation.

While numerous lawsuits and other opposition efforts in the past have generally been resolved in Cape Wind’s favor, they have helped to significantly delay the nation’s first proposed offshore wind farm. It has been nine years since the project was first unveiled — and new lawsuits could hamper Cape Wind’s desire to have the energy plant operational by 2013.

Cape Wind is now waiting for approval from the state Department of Public Utilities for a 15-year deal for National Grid to buy half its power, struck after Salazar’s approval. Yet controversy has erupted over how much the wind energy will ultimately cost consumers.

Yesterday’s lawsuit returned attention to one of the wind farm foes’ first complaints: that birds could be killed by the turbines’ fast, rotating blades.

The lawsuit argues that there is no reliable information on how many birds would die by flying into turbine blades. The suit says the federal government failed to collect or submit acoustic, radar, infrared, or observational data on bird migration.

According to a massive federal environmental review on the project, there could be some bird deaths but the number is not likely to be large. The review concluded that the federally endangered roseate tern would not be deeply affected because the bird tends to hug the coast.

The suit also says federal officials failed to fully explore the possible impact on whales, especially after a large group of federally designated endangered North Atlantic right whales were seen in the area. However, environmental officials have said right whales are not known to frequent Nantucket Sound.

Audra Parker, executive director of the Alliance, indicated that the lawsuit was just the first from the group.

“We are party to this lawsuit, but that is not to say we are not filing another lawsuit,’’ Parker said. “What you are seeing is more and more objection to Cape Wind. This suit is on impacts to birds [and other species] but we clearly have other’’ objections.

Jack Clarke of Mass Audubon responded: “I didn’t bump into any of these organizations on Nantucket Sound when [our organization conducted extensive surveys]. Our data shows it will not pose a threat to endangered or migratory bird populations. This is not the time for any legitimate environmental group, in the face of the most damaging environmental catastrophe in the nation in the gulf, to say a renewable energy project is a threat.’’

Jackie Barry, a National Grid spokeswoman, said her company had not seen the lawsuit but “we have every reason to believe that Cape Wind will get built, and we remain convinced this project is critical if we truly want to significantly increase the amount of clean energy in the region and meet the state and regional requirements to add renewables to utility power supplies.’’

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