The Great Gadfly

Ambush at Eelgrass Pass

Ambush at Eelgrass Pass

Trampled rights and muddied waters

By Peter Kenney

On October 18 of this year the Cape Cod Commission issued a procedural denial of the application by Cape Wind Associates to install an electric transmission cable under a portion of Nantucket Sound and underground through portions of the towns of Barnstable and Yarmouth.

Environmental and political hypocrisy

Regulators should be evenhanded, fair, consistent and just. Lady Justice holds the scales high but wears a blindfold. Her judgment is impartial, blind to undue influence. For more than six years Cape Cod and various federal and state agencies have been wading through the process of reviewing Jim Gordon's Cape Wind proposal/application to erect a so-called wind farm -- 130 wind turbines -- on Horseshoe Shoals in Nantucket Sound. A major bone of contention has been, and remains, who has jurisdiction over the review of his application and the granting of his permit. It falls primarily to the federal government.

Perhaps this is as it should be, but that is not the point of this piece. One portion of Gordon's planned operation does fall clearly and only in state waters and on local dry land -- the cable that will carry the electricity from the wind farm to its connection in Barnstable and thence into the New England electric grid. The Commonwealth and the towns of Barnstable and Yarmouth are directly affected. Enter the Cape Cod Commission. Gordon applied to the Commission for a review of his transmission cable.

In spite of the fact that the Massachusetts Energy Facilities Siting Board had already reviewed the very same material and had granted full approval of Gordon's proposed cable, the Cape Cod Commission conducted its own further review. To describe its process as arbitrary and capricious would be mild. To say that Gordon was hijacked would not be overstating anything. But, the worst aspect of the Commission’s performance is its clear environmental and political hypocrisy. As you read, remember that I do not support Gordon's plans for Nantucket Sound. But fair is fair. The Cape Cod Commission and Barnstable County have trampled Jim Gordon’s rights and ours.

Like yelping hounds on a grizzly bear

Being a man who tends to be thorough and knowing how these things should run, Gordon submitted voluminous amounts of material to the Commission as part of his application. The underlying work for his application was enormously expensive. In its usual fashion, like yelping hounds on a grizzly bear, the Commission worried him with a constant stream of requests for new, different and additional information. Gordon, being Gordon, plodded ahead, responding to every request. The Commonwealth of Massachusetts required less back-up material than the Commission and yet it is still not satisfied.

The smoking gun, however, the clear proof that the Commission is in the tank with Gordon's opponents is its duplicity, its naked hypocrisy. Consider: the Commission expressed great concern about the potential for damage caused by the cable to what remains of the once-vast eelgrass beds in Nantucket Sound. The fact is, Gordon's proposed route, at substantial cost for extra cable and installation, completely avoids -- goes around it, not through it -- the one eelgrass bed in its path. The Commission also expressed great concern about bottom sediment disturbed by the cable installation process settling to a thickness of "3 - 5 millimeters" on the floor of Nantucket Sound. No one actually knows what all of the Commission's concerns were or are because its usual method is to ask for more information, then more, then more, then more.

Fair? Nuts!

Under its original legislation and the regional policy plan that guides its actual operations, the Cape Cod Commission can refer a project of regional impact to itself. It does not need to wait for referral by a town. How, then, did it miss Nantucket Electric's Nantucket-to-Hyannis undersea power cable?

Installed using exactly the same technology that Gordon intends to use, but traveling several times the total distance of Gordon's, this cable carries power from the mainland to Nantucket Island. It makes landfall close to Gordon's proposed cable and travels a roughly identical route through Yarmouth to a grid connection in Barnstable.

The Nantucket Electric undersea cable underwent NO REFERRAL TO OR REVIEW BY THE CAPE COD COMMISSION. Even though being required to pass muster before the Commonwealth's Energy Facilities Siting Board should have triggered Commission review automatically, there was no such review. Worse, the Nantucket cable shot straight through an eelgrass bed at least five times the size of the one Gordon plans to avoid. As a general statement, Jim Gordon and Cape Wind have been held to a much higher standard of review than is consistent with past practices at the Commission. And still it is not satisfied.

Also, while the Commission now uses a small point to justify its opposition to the Gordon cable (he refused its demands for $30,000 in monitoring funds and unknown set-asides for putting land into conservation) the Commission made no such demands on Nantucket Electric. There is so clear a double standard at work here that to say otherwise is to risk committal to an institution. You would have to be nuts to say that this is fair.

Certain interests not fully disclosed

The likelihood – certainty -- is that Gordon will fight back effectively and win. That is not the point. The point is the arbitrary, capricious and (in my opinion) fundamentally lawless method applied by the Commission to this application. The environmental concerns stated by the Commission as they relate to the proposed transmission cable have been more than adequately addressed in Gordon's plan. Yet these same concerns should apply to the Nantucket Electric cable and, in fact, should be multiplied by at least five. But that project was never even reviewed by the Commission.

When the Commission claims to be safeguarding our marine environment it is not being truthful. It is serving certain interests not fully disclosed within its own record. This accomplishes nothing in the overall progress of Gordon's full application for a federal permit. It does demonstrate clearly that the Commission is both deceitful and incompetent. It cares nothing for eelgrass or sediment flushed into the water column. If it did, the Nantucket Electric cable would have received a full and equal review. It is the Cape Cod Commission who has muddied the waters of Nantucket Sound.

No way to dodge this bullet

Finally, during this entire Byzantine process there was off-the record contact between Commission staff and ...who knows? We know of one such series of contacts from the words of Leo Cakounes, the Harwich representative to the Commission. Cakounes was quoted in the press after the Commission vote as saying that he had not intended to attend to the October 18 meeting, but decided to do so at the last minute. He voted  to deny the application. He also said that he had praise for the hard work of the staff on this application and that he had personally talked with staff by telephone several times during the review of the application.

Really? I would like to see the full record of those conversations: day, date and time; duration; staff identity; general subject(s) of conversation; advice given to or by Cakounes; effect on process; etc. Do we not have the right to expect a full and public record of the way our public regulatory agencies conduct OUR business? In view of the bizarre and nasty history of the Cape Cod Commission there was no way Jim Gordon was going to dodge this bullet. He knew that. But the Commission never even took aim at Nantucket Electric. While some might say that the enemy of my enemy is my friend, who will help me when that same enemy turns on me? This was the Ambush at Eelgrass Pass.