Cape Wind down but not out

Senator Edward Kennedy urged Senator Stevens to pass this kill-wind provision

By Walter Brooks

When the seven senators met again behind closed doors yesterday to vote on an amendment to stop Cape Wind, Senator Gordon Smith changed his vote.

Beware of Grizzlies bearing grudges. In late March 2003, proposed oil drilling in Alaska's Arctic National Wildlife Refuge was defeated by a 52-48 vote in the Senate - and only because eight Republican senators, including Gordon Smith of Oregon, broke party ranks.
A story in the Seattle Post-Intelligencer at the time includes this interesting passage - "Before the vote, Sen. Ted Stevens, R-Alaska, who has fought for petroleum development in his home state for a quarter century, joked with reporters that he was wearing his Incredible Hulk tie, a gift from his daughter, which he said was a good luck charm because he never lost a vote when wearing the tie.
"But during the debate, Stevens, the chairman of the powerful Senate Appropriations Committee, showed his acerbic side, threatening to punish lawmakers who voted against drilling.
"People who vote against this today, are voting against me and I'll not forget it," he warned."
What others say:
Read why the amendment passed according to the Globe story here, and read today's lead editorial in the Globe here, and more about Smith changing his vote, on Jack Coleman's blog here. Read the AP story here.The Oregon Senator lined up with Senator Ted Stevens' effort to block the country's first offshore wind farm.

But Senator Smith's move paled in comparison to help the veto measure got  from another longtime foe of this particular wind farm in his front yard.

Kingmaker Kennedy "carrying NIMBYism to new low"

U.S. Senator Edward Kennedy (D-MA) made a personal appeal last week to Senator Ted Stevens, (R-AK), a committee member and a leading backer of the veto bill according to today's Associated Press story.

“Senator Kennedy spoke to Senator Stevens in support of this provision,� said Kennedy spokeswoman Melissa Wagoner.

This from the man who during the recent Senate debate over changing the Filibuster rules less than a year ago said, "Every child knows that you don't change the rules in the middle of the game."

Philip Warburg, president of the Conservation Law Foundation said yesterday, “Sen. Kennedy is carrying NIMBYism to a new low. I think it’s hard to take him seriously in future debates over alternative-energy issues."

The amendment passed yesterday specifically targets Nantucket Sound as the one area of federal waters where the governor rather than the US Coast Guard has final word on navigational safety.

If the bill goes in effect while Mitt Romney is still governor, he has promised to stop the project. No other wind project is so proscribed.

For example, the Long Island Power Authority has a similar offshore wind farm project proposed off the south shoreline of Long Island. The project is endorsed by both Republican New York Governor George Pataki and Democratic U.S. Senator Hillary Clinton.

Bill goes back to Congress, Legal action possible

This latest version of the Coast Guard Reauthorization Bill must now go back to both houses of Congress for a final up or down vote.

According to Philip M. Small, an attorney for the firm Brown Rudnick in Hartford who specializes in energy law, Cape Wind may have legal recourse if the bill does pass. Small is qouted in The Povidence Journal saying, "Certainly, it would be ripe for a constitutional challenge of some sort," adding that one possible claim could be that the law discriminates against Cape Wind since it appears to apply only to that company's project.

Attorney Small added that another claim could be a taking of Cape Wind's property without due process of law, "They began this project with assumptions based on laws and regulations they would have to meet," he said. "Then this very targeted law was passed."

Despite this major setback, Cape Wind issued a strong challenge which CapeCodToday.com includes below in its entirety for the public record of this event.

Statement of Jim Gordon, President of Cape Wind, on the anti-Cape Wind provision in the Coast Guard Reauthorization Conference Bill

Despite the President, Congress and the public’s call for the rapid development of renewable energy resources, a handful of Transportation and Infrastructure committee members, led by Alaskan Congressman Don Young and working behind closed doors in Washington, have tacked a special interest provision on a Coast Guard Bill designed to single out and stymie America’s first offshore wind farm.

“Senator Kennedy spoke to Senator Stevens in support of this provision,� said Kennedy spokeswoman Melissa Wagoner. This from the man who during the recent Senate debate over changing the Filibuster rules less than a year ago said, "Every child knows that you don't change the rules in the middle of the game."

This 11th hour move to change the rules for a renewable energy project that has already received its Massachusetts Energy Facilities Siting Board approval and is moving favorably through an over five year environmental review involving seventeen Federal and State agencies is unjust and contravenes our regional and national energy policy interest. Our project enjoys the support of national and local environmental organizations, labor unions, health advocates and the overwhelming majority of Massachusetts citizens and will deliver increased energy independence, lower energy costs, a healthier environment and new jobs.

For that reason, we today call on leadership and members of Congress to stop this egregious abuse of process and to strip this special interest anti-renewable energy provision from the legislation and begin to replace the rhetoric for renewable energy with real action in support of Cape Wind and the future of offshore wind energy.

BACKGROUND
The Senate and House Should Reject Any Provision to Harm Offshore Wind The Conferees to the Coast Guard Reauthorization bill have imposed a provision that would likely ban the first offshore wind energy project being developed in the United States: Cape Wind.

This provision has never been introduced in the House or the Senate; no hearings or other public notice has ever been provided, and it did not pass either House of Congress.

It sets a different standard for this project than any other in the U.S. The provision has no direct relation to the Coast Guard.

It would allow the Governor of any adjacent state to ban offshore wind energy projects in Nantucket Sound, for any reason whatsoever, whether or not the Coast Guard determines the project has any adverse effect on navigation. Because the Governor of Massachusetts opposes this project, despite broad support in the legislature and among the citizens of the state, this new authority would likely prohibit the Cape Wind project, even though it meets all federal and state standards for development.

By arbitrarily legislating a new barrier on a single project, solely because of local opposition, this provision will impede the development of offshore renewable energy throughout the country. The only support for this provision is from the local landowner (NIMBY) group that has been established to prevent the development of the Cape Wind project, which is located on Horseshoe Shoal in Nantucket Sound more than 5 miles from any point of land.

More specifically:
This provision directly impairs development of secure, domestic offshore renewable energy by upsetting the carefully balanced provisions to promote offshore renewables enacted in the Energy Policy Act last year. Both Senators Domenici and Bingaman have urged the Senate to reject this provision as contrary to the Energy Act incentives for domestic renewable energy.

The provision directly contradicts the initiative of the President to promote the development of renewable energy and reduce our dependence on insecure, foreign sources of oil.

The provision flies in the face of decades of precedent in the careful balance between federal and state authority for energy development on the OCS and sets a precedent that special rules can be designed for specific projects.

• The Cape Wind project has undergone 5 years of regulatory review by the Army Corps of Engineers, including a 4 year Environmental Impact Assessment (EIS).
• Under the Energy Policy Act, the project will also undergo further extensive analysis by the Department of the Interior, which will include full consultation with the Coast Guard and the State on long-term navigational issues.
• The Coast Guard already has three separate regulatory proceedings to guarantee that there are no adverse effects to navigation. First, it has participated extensively in that EIS, concluding that the Navigational Risk Assessment prepared by the Corps sufficiently addressed issues raised by the Coast Guard.
• Second, the Coast Guard will be a participating agency in the new proceeding at the Department of the Interior, required by sec. 388 of the Energy Policy Act, to license offshore alternative energy projects.
• Third, the Coast Guard must approve Cape Wind’s application to the District Commander, under 33CFR part 66, to establish the project’s Private Aids to Navigation
• The Navigational Risk Assessment conducted for the Army Corps’ EIS concludes that Cape Wind, which is primarily in a shallow called Horseshoe Shoal, "is not expected to create negative impacts on navigational safety." Further, the Wind Park "will provide adequate watershed area for unrestricted and safe navigational access in and around the Wind Park." Moreover, "the presence of the Wind Park will not restrict large vessel movements in the area since they are naturally restricted from the area by the charted water depths."
• The Risk Assessment also finds that the Wind Park "will essentially serve as an aid to navigation simply by its presence in Nantucket Sound." Each tower will be marked on NOAA charts, "and will serve as points of reference for mariners navigating in and around Horseshoe Shoal."
• European wind energy projects are operating and in development adjacent to and within 1 1/2 miles from shipping channels without incident.
• The Commonwealth of Massachusetts has actually approved the project, through its Energy Facility Siting Board, which undertook a three year on the record review to determine whether to license the cable coming ashore in state waters and found that the project’s low cost, clean and reliable energy is essential for the state and region’s energy needs.
• The Massachusetts legislative leadership strongly opposes this provision and has written to the Conferees expressing this view and its support for Cape Wind.
• The University of Massachusetts latest poll of sentiment in the State regarding the Cape Wind project concludes that voters favor the project by a 6 to 1 margin.

Public Statements of Senate Energy Committee Chairman Pete V. Domenici (R-NM) and Senate Energy Committee Ranking Member Jeff Bingaman (D-NM) Opposing Amendments Offered to the Coast Guard Conference Bill that would Thwart Offshore Renewable Energy Development in the United States, April 5, 2006:

Below please find a statement from Senate Energy & Natural Resources Chairman Pete V. Domenici regarding the inclusion of any provision in the Coast Guard Reauthorization Act Conference Report that would block renewable energy projects from going forward: "The Energy Policy Act of 2005 reflects a strong bipartisan commitment in this Congress to expand America's use of renewable energy. Our bill included incentives for the production of energy from wind, solar, geothermal, biomass and hydropower sources. I consider those provisions vital to our energy security, our economy and our environment. The bill also gives authority to the Secretary of the Interior, in consultation with the Coast Guard and other relevant federal agencies, to site renewable energy projects on the Outer Continental Shelf. We require the Secretary to consult with any affected state and local governments. "I urge conferees to resist any attempt to include provisions in the Coast Guard Reauthorization Act that run contrary to the intent of the energy bill. I certainly urge them not to act contrary to our nation's growing preference for clean, America-made renewable energy. In particular, I think would it be a very bad idea to give states veto authority over the siting of renewable energy projects on federal land in a bid to stop a particular project. In the energy bill, we gave states a strong voice and a key role in siting renewable projects on the OCS. That is sufficient. It would be folly for us in Congress to talk about breaking our addiction to foreign oil and, at the same time, pass laws that stymie our own production of clean and renewable energies here at home. We can't have it both ways."

Senate Energy Ranking Member Jeff Bingaman (D-NM): "I oppose attempts to include anti-renewable energy provisions in the Coast Guard conference report. Congress would be wrong to go along with any such proposal, for several reasons. "First, a fair process to review renewable energy projects in Federal waters already exists. A regulatory review of the Cape Wind project is underway. To invent a new regulatory process designed simply to deliver a negative result would chill future investment in renewable energy. We need more energy sources like wind to moderate the high prices that Americans are paying for electricity, natural gas and home heating oil. "Furthermore, if a special-interest provision to veto a single project by earmark in a conference report succeeded, it would make a mockery not only of all the statements in Congress about the need to strengthen America's domestic energy security, but also our statements advocating lobbying reform in Washington. I hope we can move forward with a clean bill to reauthorize important Coast Guard programs and not hold them up for such an unjustifiable provision."