Brief Calls for Vacating Key Approvals of Cape Wind to Protect Wildlife

Today, we filed our opening brief in a case challenging the authorization of the Cape Wind project, a massive wind power facility proposed for waters off the coast of Massachusetts, on behalf of Public Employees Environmental Responsibility, Three Bays Preservation, Cetacean Society International, the Alliance to Protect Nantucket Sound, and other organizations and individuals.

We demonstrate that federal agencies’ authorizations for the project violate the Endangered Species Act and Migratory Bird Treaty Act.

Our brief highlights critical documents in the administrative record that reveal:

• The Fish and Wildlife Service determined that temporary, seasonal shutdowns were necessary to protect endangered and threatened birds, but removed the protections after the developer determined they were too costly.  Of particular importance, the Fish and Wildlife Service never made an independent determination that absent such protections, the spinning turbine blades would not jeopardize the continued existence of the protected species– an error compounded by the fact that no effective mechanisms exist for monitoring the deaths of birds over open water.

• Despite their awareness that the Migratory Bird Treaty Act prohibits killing even a single migratory bird, and projections that the wind power facility will kill thousands or tens of thousands of birds, the agencies authorized the project without taking measures to reduce the bird kill or require the developer to get a permit.

• The National Marine Fisheries Service rejected the notion that tens of thousands of boat crossings associated with the facility would put North Atlantic right whales at risk, even though being hit by boats is the primary source of mortality for the highly imperiled species.  After discovering the whales in areas where high-speed boats will cross, the Service came to the absurd conclusion that their presence in the area somehow "supports” a conclusion they won’t be there in the future.  The agency imposed no speed limits on the boats at all.

• The agencies allowed the developer to increase the duration of preconstruction surveys ten to twenty times over a previous proposal without analyzing how the more intensive surveys will harm endangered sea turtles present in Nantucket Sound.

Repeatedly citing the agencies’ own administrative records to demonstrate that key decisions were rushed by politics, our brief calls on the Court to vacate approval of the project.