By Todd Griset, Offshore Wind Wire
As reported by the Offshore Wind Wire, the proposed Cape Wind offshore wind project hit a legal snag recently. The U.S. Court of Appeals for the District of Columbia Circuit issued an order overturning a finding by the Federal Aviation Administration (FAA) that the Cape Wind project’s wind turbines would pose no hazard to aviation.
While this ruling may be a setback for the project, it reveals the complex interplay between federal agencies in permitting offshore wind in the U.S.
Federal regulation of offshore wind projects spans a broad range of activities, from site leasing on the outer continental shelf to marine mammal protection and fisheries to impacts on historic sites. These regulatory functions are carried out by an “alphabet soup” of administrative agencies from the universe of federal bureaucracy. FAA is charged with maintaining the safety of air navigation, so the Department of Interior consults FAA before granting a project developer a site lease.
If FAA decides that constructing an offshore wind tower would result in either an “obstruction of the navigable airspace” or “interference with air navigation facilities” like radar systems, FAA has the authority to study the proposed project in more detail and recommend strategies to mitigate the project’s impacts. On their own, FAA’s recommendations are technically advisory, but the Interior Department can issue site leases contingent upon compliance with any FAA mitigation measures. This gives FAA’s findings increased importance.
In Cape Wind’s case, after the developer notified FAA of the project, FAA initially issued a Notice of Presumed Hazard, requested public comment, and performed aeronautical studies. FAA analyzed the project for 8 years, ultimately concluding that Cape Wind’s 130 turbines “would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities.” FAA issued 130 identical Determinations of No Hazard for the project, one for each proposed turbine.
In the meantime, the Department of Interior granted Cape Wind a site lease, contingent on compliance with aviation impact mitigation requirements in the lease as well as any FAA recommendations; once the FAA found no hazard, no such recommendations applied beyond the mitigation measures required in the lease itself.
The Cape Cod town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound challenged FAA’s No Hazard determinations by filing a petition for review by the D.C. Circuit Court of Appeals. Petitioners argued that FAA had violated its governing statute, misread its own regulations, and failed to calculate the project’s safety impacts on aviation.
The D.C. Circuit agreed with the petitioners, finding that “FAA did misread its regulations, leaving the challenged determinations inadequately justified.” The court noted that the record contained evidence of safety risks from the project, such as avoiding the towers in foggy weather and increased traffic density if planes must divert around the project’s airspace. By contrast, the court found that the record did not contain sufficient countervailing evidence:
While of course the wind farm may be one of those projects with such overwhelming policy benefits (and political support) as to trump all other considerations, even as they relate to safety, the record expresses no such proposition.
The court also found that while the Department of Interior technically could have ignored an FAA determination of hazard, it was likely that the “Interior Department would rethink the project if faced with an FAA determination that the project posed an unmitigable hazard.”
The court found that FAA improperly applied its own handbook in evaluating whether the project would have an “adverse aeronautical effect.” In the D.C. Circuit’s view, FAA interpreted its handbook too narrowly, and “catapulted over the real issues and the analytical work required by its handbook.” As a result,
FAA may ultimately find the risk of these dangers to be modest, 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.
The court noted that it could not tell whether FAA will find the project to be a hazard when it applies the handbook guidelines correctly, but that it would hold FAA to the “standard requirement of reasoned decision-making, i.e. to require the FAA to address the issues and explain its conclusion.” As a result, the court vacated FAA’s No Hazard determinations, sending the question back to FAA for further analysis and a renewed determination process.
FAA will now reconsider whether the Cape Wind project would pose any adverse effects on air navigation. The D.C. Circuit did not rule that FAA reached the wrong conclusion in finding the project would pose no hazard, but rather that FAA did not properly document (and it appears properly consider) how it reached that conclusion.
FAA now has guidance from the court as to how to conduct this determination. FAA’s new look at the project could result in the agency reaching a different conclusion, but could equally well result in a stronger order affirming its previous finding the Cape Wind project would pose no hazard to aviation. Either way, Cape Wind’s signed lease with the Department of Interior remains in effect, yet the D.C. Circuit’s ruling reveals the complexity of navigating the multiple layers of federal regulation of offshore wind projects.