Cape Wind Secures Another Legal Victory

Cape Wind has won another legal battle. Once completed, the project will be the first offshore wind farm in U.S waters. Federal Judge Richard Stearns dismissed the lawsuit that challenged Cape Wind’s Power Purchase Agreement (PPA) with NSTAR. The District Court’s decision rejected all claims against the Commonwealth of Massachusetts, NSTAR and Cape Wind.

Judge Stearns noted in his decision that the lawsuit would violate the 11th Amendment to the Constitution of the United States that gives states immunity from being sued for past actions in Federal Court. Judge Stearns also rejected the premise of the opponents’ lawsuit: “The allegation that DPU dictated that NSTAR procure power from Cape Wind at a specified price is misleading and ultimately untrue.” While Judge Stearns identified the 11th Amendment as sufficient grounsplash_picds to dismiss the lawsuit, he noted it could also have been dismissed on various other grounds.

Judge Stearns concluded his Decision by observing: “But in this case, the Governor, the Legislature, the relevant public agencies, and numerous courts have reviewed and approved the project and the PPA with NSTAR and have done so according to and within the confines of the law. There comes a point at which the right to litigate can become a vexatious abuse of the democratic process. For that reason, I have dealt with this matter as expeditiously as possible.”

Cape Wind President Jim Gordon said, “This important legal victory provides further momentum for Cape Wind to secure project financing and produce the energy, economic and environmental benefits to the region and the United States by launching a domestic offshore wind industry.”

Bill Koch, Chairman and largest funder of the opposition group, and a coal and petroleum coke billionaire, has stated publicly that his organization’s strategy is “delay, delay, delay” and to try to use the courts to serve his strategy. Taxpayers have had to bear a considerable cost of staff time at agencies and courts defending against Koch’s litigation.

Geraldine Edens and Christopher Marraro, both resident in BakerHostetler’s Washington DC office, served as co-counsel on this matter representing Cape Wind Associates with David S. Rosenzweig, of Keegan Werlin in Boston.

In addition to the procedural issue that Judge Stearns cited in the dismissal, he rebuked the plaintiffs for bringing years of litigation aimed at thwarting Cape Wind, including after Cape Wind lined up the major state and federal permits it needed.

“We are very gratified on many levels with Judge Stearns’ decision. His opinion is extremely thoughtful and well-reasoned and he recognized the need to address plaintiffs’ lawsuit quickly. What is particularly pleasing is that Judge Stearns saw through the opponents’ litigation strategy for what it is – a ‘vexatious abuse of the democratic process,’” said Edens.

Mr. Marraro added, “Indeed, Judge Stearns judged the key allegation of plaintiffs’ complaint as meritless when he wrote that ‘the allegation that DPU dictated that NSTAR procure power from Cape Wind at a specified price is misleading and ultimately untrue.’ It is one thing to bring a lawsuit when your client is aggrieved because of an alleged violation of law, but it is quite another to bring lawsuit after lawsuit for a decade that the courts conclude lack merit in order block a project that has been approved by all of the relevant federal and state agencies.”

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