Town Of Barnstable, MA v. FAA

Oct 28:  In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1276. The Appeals Court summarizes that, Cape Wind Associates has proposed building 130 wind turbines, each 440 feet tall, in a 25-square mile area of Nantucket Sound -- an area roughly the size of Manhattan island [See WIMS 4/28/10, & WIMS 4/29/10]. If constructed, the project would be the nation's first offshore wind farm.

 

    The Appeals Court explains that as required by federal regulations, Cape Wind notified the Federal Aviation Administration (FAA) of its proposed construction. After a preliminary investigation, the FAA issued a Notice of Presumed Hazard, and initiated more extensive aeronautical studies to decide whether the project would "result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace." The FAA also circulated a public notice of these

studies and invited interested persons to submit comments.

 

    The FAA ultimately issued 130 identical Determinations of No Hazard, one for each of the proposed wind turbines. In the determinations, the FAA concluded that the turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." Although it ultimately decided that the project was not a hazard, its decision was contingent on Cape Wind's implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

 

    Petitioners -- the town of Barnstable, Massachusetts and the Alliance to Protect Nantucket Sound, a non-profit organization of private citizens and other organizations -- challenge these No Hazard determinations. They argue that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. In response, the FAA claims that petitioners lack standing to challenge the FAA's determinations and that their merits

claims are faulty. The Appeals Court found that petitioners do have standing and that the FAA did misread its regulations, "leaving the challenged determinations inadequately justified."

 

    The Appeals Court points out, "After discussing the adverse effects the turbines would have on nearby radar facilities, the FAA's Determination addressed the impact on VFR operations, purporting to find no adverse effect on such operations. In so doing, the FAA relied solely on § 6-3-8(c)1 of the handbook, which says: 'A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within 2 statute miles of any regularly used VFR route.'. . After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

 

    The Appeals Court ruled, "The FAA repeatedly notes in its brief that the handbook 'largely consists of criteria rather than rules to follow.' . . We agree. Any sensible reading of the handbook, and of § 6-3-8(c)1 in particular, would indicate there is more than one way in which the wind farm can pose a hazard to VFR operations. Indeed, other sections of the handbook, especially when read in light of some of the evidence noted above, suggest that the project may very well be such a hazard. Here, by abandoning its own established procedure. . . the FAA catapulted over the real issues and the analytical work required by its handbook.

 

    "Whether in fact an application of the handbook's guidelines to the studies discussed above will cause the FAA to find the project a hazard, and if so, of what degree, we obviously cannot tell at this stage. But it surely is enough to trigger the standard requirement of reasoned decision-making, i.e., to require the FAA to address the issues and explain its conclusion. . . The FAA's misplaced reliance on § 6-3-8(c)1 is no substitute. The petitions for review are accordingly granted, and the FAA's determinations are Vacated and Remanded."

 

    Access the complete opinion (click here). Access the DOI website for the project for complete background information and extensive documents (click here). [#Energy/Wind, #CADC]

GET THE REST OF TODAY'S NEWS (click here)