Given the impacts of climate change estimated to occur this century, one must question whether we can afford to delay or stop the implementation of alternative energy facilities to save a viewshed or a particular species. If one takes seriously the estimates of sea rise, the effort to save a coastal view could be pointless if the coast itself will disappear. So too, when estimates of annual loss of species due to climate change range in the thousands, should a critical alternative energy facility be halted to save one species?
These issues are highlighted by the continuing litigation to stop the Cape Wind project in Nantucket Harbor. According to the project sponsors, the recent decision in Federal Court turning down yet another challenge was the latest of twenty-six court decisions favoring the project in a history stretching back thirteen years.
The Cape Wind project would develop a wind farm of 130 turbines over 24 square miles of federal waters in Nantucket Sound, five miles off Cape Code and fifteen miles from Nantucket. The latest decision recites the litigation history. Cape Wind applied for a permit in 2001. In 2002, the U.S. Army Corps of Engineers granted a permit for a meteorological tower to gather data, which was immediately challenged in court. In 2005, Massachusetts approved the construction of two undersea electric transmission cables and in 2007 approved the final environmental impact report. Both were unsuccessfully challenged. In 2010, the federal government approved the project and issued a lease to operate the facility in federal waters.
In the latest decision, Town of Barnstable v. Berwick, the court noted, "Both sides in the dispute claim the mantle of environmentalism, although for present purposes plaintiffs have doffed their green garb and draped themselves in the banner of free-market economics." Despite the plaintiffs' somewhat tortured argument on electricity rate setting, the central issue was whether the supremacy clause of the Eleventh Amendment barred the suit against Massachusetts. The court held it did.
In a news release posted by Cape Wind, George Bachrach, President of the Environmental Leagues of Massachusetts, is quoted as saying, “It is obvious that project opponents have just been using the courts to delay this important project and to try to disrupt their efforts at securing financing; it is gratifying to see, for the 26th time, their lawsuit get rejected.” In his final footnote in the Barnstable case, the judge noted in an obvious reference to the long litigation history, "There comes a point at which the right to litigate can become a vexatious abuse of the democratic process."
Although the Cape Wind saga may be an extreme example, the environmental bar and their clients must wrestle with the difficult question of whether all exceptional viewsheds and every threatened or endangered species must be preserved at the cost of an important alternative energy facility. Every person has a right to his or her day in court to determine whether applicable laws have been violated, but there must be a balancing of environmental priorities when deciding whether to litigate. It is difficult to imagine more dire environmental impacts than those said to be associated with climate change. How to address this shifting balance through our environmental laws will be a major challenge over the next few decades.