Appeals Court Overturns Key Cape Wind Clearance

A federal appeals court on Friday rejected the Federal Aviation Administration's ruling that the Cape Wind project's turbines present "no hazard" to aviation, overturning a vital clearance for the nation's first offshore wind farm.

A decision Friday from the U.S. Court of Appeals for the District of Columbia said the FAA didn't adequately determine whether the planned 130 turbines, each 440 feet tall, would pose a danger to pilots flying by visual flight rules.

The court ordered the "no hazard" determinations vacated and remanded back to the FAA.

"The FAA did misread its regulations, leaving the challenged determinations inadequately justified," the ruling read.

The court also found that an FAA determination that the project posed aviation risks would likely lead the U.S. Interior Department to revoke or modify the lease granted Cape Wind - the first granted to a U.S. offshore wind project.

The decision signals further delays for the $2.6 billion project, which was under review for about a decade and which has struggled to find financing.

Project opponent Audra Parker of the Alliance to Protect Nantucket Sound, said the decision is a major step toward killing the project, since any further delay would make finding the needed financing difficult to impossible.

"It's a key step toward Cape Wind's ultimate failure," she said.

But Cape Wind spokesman Mark Rodgers said he didn't think the ruling would affect the project's schedule.

"The FAA has reviewed Cape Wind for eight years and repeatedly determined that Cape Wind did not pose a hazard to air navigation," he said. "The essence of today's court ruling is that the FAA needs to better explain its Determination of No Hazard ruling."

The appeal was brought by the Town of Barnstable and the Alliance to Protect Nantucket Sound,

The court found that due to a misreading of its rulebook, the FAA failed to analyze Cape Wind's effect on planes flying by visual flight rules, even though the project could clearly affect them. The court said that during a 90 day period, 425 such flights flew at 1,000 feet or less in the vicinity of the planned project site in Nantucket Sound.

"The FAA may ultimately find the risk of these dangers to be modest," the court wrote, "but we cannot meaningfully review any such prediction because the FAA cut the process short in reliance on a misreading of its handbook and thus, as far as we can tell, never calculated the risks in the first place."