Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board
Court: Massachusetts Supreme Judicial Court; August 31, 2010; Massachusetts; State Supreme Court
In 2005, the Energy Facilities Siting Board approved Cape Wind Associates, LLC's petition to construct two 115 kilovolt underground and undersea electric transmission cables to connect its offshore wind farm to the regional power grid, a decision later affirmed by the court. However, actual construction requires additional state and local permits. In 2007, the Cape Cod Commission denied Cape Wind’s Development of Regional Impact (DRI), which was necessary for the project. Subsequently, Cape Wind sought a "certificate of environmental impact and public interest" from the siting board, which was granted in May 2009 after an adjudicatory proceeding. Three interveners—Alliance to Protect Nantucket Sound, the Cape Cod Commission, and the town of Barnstable—appealed this decision, challenging the validity of a Department of Environmental Protection regulation. The court affirmed the siting board’s decision and upheld the regulation. Cape Wind plans to build a wind farm with 130 turbines in federal waters, requiring only federal permits, but the transmission lines, which will traverse state waters, necessitate state and local approvals. Cape Wind initiated the permitting process in 2001 with an environmental notification form, leading to a joint review under the Massachusetts Environmental Protection Act and the Cape Cod Act, resulting in the requirement for an environmental impact report.
MEPA, like the Cape Cod Commission Act, is state law applicable only to projects within Massachusetts and its territorial waters. The proposed wind farm by Cape Wind is outside Massachusetts, thus exempt from state regulatory requirements, except for federal oversight under the Coastal Zone Management Act, which allows the adjacent coastal state to review projects in federal waters. Cape Wind sought approval from the siting board in 2002 for transmission lines, which is mandatory before any construction in Massachusetts. After a three-year review, the siting board approved the project in 2005, affirmed by the court in 2006. In March 2007, the Secretary of the EOEEA issued a final environmental impact report confirming compliance with MEPA. Cape Wind then pursued DRI approval from the commission, which evaluates compliance with standards in its regional policy plan. Initially deemed incomplete, the application was later accepted as complete following public hearings in May and additional information submitted by Cape Wind. By August 8, 2007, the commission had a sixty-day window to decide, otherwise, the application would be constructively approved. Additional hearings were held, and on October 18, 2007, the commission denied the application “without prejudice” due to insufficient information and Cape Wind's refusal to extend the deadline. Cape Wind did not appeal but filed a petition for a § 69K certificate in November 2007, which would consolidate necessary permits, including DRI approval and a tidelands license under G. L. c. 91. In December 2007, Cape Wind submitted a formal certificate application, merged with its initial petition.
The siting board granted intervener status to five government entities and three nonprofit organizations involved in the case. From August to October 2008, written discovery occurred, with Cape Wind, the commission, and DEP submitting prefiled witness testimony and presenting 330 exhibits primarily responding to information requests. The presiding officer conducted two days of hearings featuring cross-examination of these witnesses. A tentative decision was issued on May 11, 2009, followed by a final decision granting the certificate on May 21, 2009. All petitioners appealed the decision in county court, leading to a consolidation of appeals, including those from Barnstable and the commission against the siting board, which were reserved for further review.
The petitioners challenge the siting board's decision on various grounds, with the Alliance and Barnstable questioning the validity of a DEP regulation. The discussion begins with jurisdictional authority claims, specifically whether the siting board had the authority to override a Development of Regional Impact (DRI) denial by the commission. The petitioners argue that the Cape Cod Act provides an exclusive appeal route to challenge the commission's decision, asserting it supersedes the siting board’s enabling statute. However, the analysis indicates no inconsistency between the two statutes, allowing them to coexist and be interpreted harmoniously.
Efforts should focus on harmonizing two statutes rather than simply applying the principle that a more recent or specific statute prevails. Under § 69L(A)(4) of the siting board statute, applicants must first seek necessary regulatory approvals from pertinent permitting agencies before obtaining a certificate. Cape Wind adhered to this requirement by seeking the commission’s approval for its Development of Regional Impact (DRI), allowing the commission to review the project according to the Cape Cod Act and its regulations. Following the commission's denial of the DRI, Cape Wind had the right to appeal under § 17 of the Cape Cod Act but also independently sought a certificate from the siting board under § 69K. This section stipulates that once a certificate is issued, no state or local entity can impose regulations that would delay or prevent the project. This demonstrates that both statutes can coexist without conflict. The commission’s interpretation, which would restrict the application of § 69K to areas outside Barnstable County, contradicts the siting board's mandate to ensure a reliable energy supply for the Commonwealth.
Regarding the commission's role as a local agency, § 69K allows electric companies to seek a certificate if a facility cannot be constructed due to denials by local agencies. While the term "local agency or body" is undefined, "local government" encompasses various political subdivisions, including counties and regional agencies. The Cape Cod Act designates the commission as the regional planning agency within Barnstable County government. Petitioners argue the commission qualifies as a "local government" but not as a "local agency or body" per § 69K, asserting its denial of a DRI should not trigger a petition to the siting board. This argument is rejected, as the siting board maintains that the Legislature uses these terms interchangeably. The commission, as a regional agency within county government, qualifies as a "local agency or body" under § 69K.
The Alliance and Barnstable argue that § 69K does not empower the siting board to grant any licenses related to the Commonwealth’s tidelands, which are held in trust for public use, including fishing, fowling, and navigation. They assert that only the Commonwealth or a legislatively authorized entity can administer public trust rights. The legitimacy of the siting board's authority under § 69K hinges on whether it has been granted the power to exercise such rights. The Legislature has authorized the Department of Environmental Protection (DEP) to license tidelands structures for public purposes, maintaining a balance between public benefit and detriment. § 69K allows the siting board to issue a composite certificate incorporating necessary permits from various agencies, effectively granting it the powers of those agencies for initial permitting decisions. Although § 69K does not explicitly mention public trust rights, the Legislature's designation of DEP to protect these rights through the c. 91 licensing program implies that the siting board can act on DEP’s behalf in cases where a tidelands license is required. Thus, § 69K serves as an overlay to c. 91, and related statutes further support this interpretation.
The siting board must determine whether to grant a § 69K certificate based on its findings regarding compliance with applicable laws, ordinances, and regulations, particularly those governing tidelands under c. 91, §§ 2, 14, and 18, which involve DEP's obligation to protect public interest. § 69K empowers the siting board to assume DEP's role, meaning it would otherwise need to conduct a review similar to DEP's for Cape Wind’s tidelands license application. The legislative delegation of authority through § 69K allows the siting board to consider the equivalent of a c. 91 tidelands license without exceeding its authority, contrasting with Fafard, where no such authority was granted to a local conservation commission.
The siting board rejected the Alliance's argument regarding the "except" clause in § 69K’s first paragraph, which suggests limitations on the siting board's ability to act on denied permits related to public lands. The board interpreted this clause as limiting the types of permit denials that can initiate a certificate petition but not as restricting its authority to review or override such denials if there is an independent basis for the petition. The interpretation is supported by the structure of § 69K, with the first paragraph outlining bases for filing a petition and the fifth paragraph clarifying that a certificate encompasses all required state or local permits. The siting board’s construction of the statute is deemed reasonable and is given deference, despite some ambiguity in the "except" clause.
The ‘except’ clause does not prevent the siting board from reviewing Cape Wind’s request for a c. 91 tideland license. The siting board determined it lacked jurisdiction to consider the wind farm's in-State impacts because it is located in federal waters, limiting its review to the transmission lines only. Petitioners argue that the siting board should assess the wind farm's impacts due to its connection with the transmission project. However, they fail to establish jurisdictional grounds for this claim, as the siting board’s focus, according to statutes § 69J, § 69K, and § 690, must be solely on the proposed facility—in this case, the transmission lines. Additionally, the wind farm falls under federal jurisdiction, which takes precedence over state authority. Allowing the siting board to evaluate the wind farm's impacts could effectively grant states a veto over federal seabed jurisdiction, conflicting with the Outer Continental Shelf Lands Act (OCSLA). The siting board's authority does not extend to denying or conditioning the transmission project based on the wind farm's impacts, as the lines are essential for the wind farm's operation.
The siting board is not permitted to exercise authority indirectly that it cannot exercise directly. It appropriately considered the in-State impacts of Cape Wind’s transmission lines, even though part of the lines is in federal waters, as these impacts are directly related to the facility under its jurisdiction. This approach satisfies the siting board's public trust obligations due to the facility's location in Commonwealth tidelands. The presiding officer allowed testimony relevant to the transmission project but excluded testimony regarding the wind farm’s turbines’ impacts, which were deemed inadmissible as unrelated to the transmission project. The presiding officer did not abuse her discretion or commit legal error with this ruling. The wind farm has been extensively reviewed by federal and state agencies, including a National Environmental Policy Act review by the Minerals Management Service and a certification from the Coastal Zone Management Office affirming consistency with policies. Additionally, the siting board conditioned Cape Wind’s transmission project certificate on obtaining all necessary federal and state permits for the wind farm. In reviewing the siting board’s authorization of Cape Wind’s transmission lines under § 69J, the court affirmed the siting board's deference to federal review.
Regarding Cape Wind’s organizational status, § 69K allows any electric company to petition the siting board for a certificate. The commission contends that Cape Wind, as a limited liability company, does not qualify as an electric company, thus questioning the siting board's jurisdiction. However, the commission waived this jurisdictional argument by not raising it before the siting board. The key issue of subject matter jurisdiction pertains to whether the Legislature granted the agency authority to hear specific types of cases. The Legislature has designated the siting board as the authority to grant permits for entities hindered by other permitting agencies in energy project development. The permissible organizational form of a petitioning entity is not a matter of subject matter jurisdiction but rather a substantive element of the case for relief. Since the commission did not raise this issue prior to its appeal, it is considered waived.
The siting board determined that Cape Wind met the criteria outlined in § 690 for its certificate decision, concluding that the transmission project was (1) necessary, (2) compatible with environmental protection, public health, and safety, (3) compliant with state and local laws—albeit with reasonable exemptions from certain aspects of the Cape Cod Act and RPP—and (4) required for public interest and convenience. The board found Cape Wind had made a good faith effort to secure necessary authorizations, including DRI approval, and local and state permits, three of which had already been obtained. The process for obtaining a certificate mandates that the applicant files a petition detailing the need for the certificate and the efforts made to obtain required regulatory approvals.
The standard of review for the petitioners contesting the certificate decision is governed by G. L. c. 164, § 69P, which requires an examination of the decision's conformity with constitutional provisions, adherence to procedural requirements, support by substantial evidence, and avoidance of arbitrary or capricious actions. The siting board's expertise is given significant deference, and the burden falls on the petitioners to demonstrate the decision's invalidity.
The commission argued that Cape Wind failed to make a good faith effort for DRI approval due to delays in providing evidence regarding site control, claiming this undermined the siting board’s compliance with G. L. c. 164, § 69L(A)(4). However, the siting board found that Cape Wind had sufficiently engaged with the commission through meetings and information provision, including ownership proof for landside locations along the cable route, and explained any inability to secure authorizations prior to receiving DRI approval. Cape Wind's voluntary agreement to extend the DRI decision timeline was also noted. Ultimately, substantial evidence supported the board's conclusion regarding Cape Wind's good faith effort, and the board's finding was upheld.
The commission contends that the siting board violated 980 Code Mass. Regs. 6.03(1) by rejecting its motion to confine the review record to that of the commission during the DRI review. The regulation stipulates that challenges to adjudicatory findings must be based solely on the agency's record. The siting board asserted that the regulation was inapplicable since the commission did not conduct an adjudicatory hearing for Cape Wind's DRI application, lacking formal testimony, cross-examination, or credibility assessments, which are not mandated for the siting board's review process.
Additionally, petitioners argue the siting board failed to comply with findings required under § 690. Specifically, § 690(1) necessitates a determination of the facility's need to meet energy demands in the applicant's market area, while § 690(3) requires assessment of the facility's compliance with existing laws and its environmental impact. The commission criticized the siting board for not evidencing the need for the project and claiming that the wind farm's construction alone established this need. The siting board countered that it could not evaluate the wind farm's need or cost due to its federal waters location and the 1997 Electric Restructuring Act, which removed the need consideration for generating facilities from its purview. The siting board concluded that it was unreasonable to interpret the statute as barring it from assessing generation facility needs.
The siting board is tasked with assessing the need for a generating facility indirectly through its evaluation of a transmission line certificate, as dictated by an ambiguous statute. This interpretation aligns with the 1997 Electric Restructuring Act, which shifted the responsibility of determining the need for generation facilities from state regulators to the marketplace. The court supports the siting board's discretion to adopt a new evaluation approach, focusing on whether the existing transmission system is adequate for new generators and if those generators can contribute to regional energy supply. In the case of the Cape Wind transmission project, the siting board found that the existing transmission system was inadequate, thereby justifying the project’s necessity based on the wind farm's established contribution to regional energy supply.
The siting board's approval of the transmission project was conditioned on Cape Wind providing all necessary permits for the wind farm, as previous findings indicated no substantial changes affecting the project's need. The court upholds this methodology as applicable in both the relevant statutory contexts.
Regarding environmental impact, the petitioners argue that the siting board's findings were insufficient under specific statutory sections. They contend that the board failed to confirm minimal environmental impact, improperly relied on earlier findings, did not require thorough environmental studies, and excluded evidence of the wind farm's local impacts. The court rejects these claims, clarifying that the requirement is not to find minimal impact but to ensure compatibility with environmental protection considerations.
Section 690 (3) mandates that any exemption from compliance with state or local law must align with energy policies aimed at ensuring a necessary energy supply for the commonwealth while minimizing environmental impact and cost. The siting board confirmed both criteria. It referenced findings from prior decisions (69J and 72) indicating that the proposed transmission lines were less harmful to the environment compared to alternatives, and noted that Cape Wind's commitments regarding eelgrass, coastal shorebirds, navigation, traffic, and historic preservation would further reduce environmental impact. The board emphasized that the facility must remain consistent with the policies outlined in G.L. c. 164, § 69H, which stresses providing a reliable energy supply with minimal environmental costs.
Disputes about the relevance of findings from the 69J context were dismissed, affirming that those findings inform the 690 decisions. Additionally, the siting board did not solely rely on previous determinations but examined new evidence presented during the certificate proceedings, including expert testimonies and extensive documentation. The inquiry centered on three environmental concerns raised by the commission: the impacts of jet-plowing for cable installation, effects on eelgrass beds, and the placement of a transition vault in a FEMA V-zone near a coastal bank. The board found that these issues had previously been thoroughly evaluated, received favorable reviews from the DEP and EOEEA in the MEPA process, and that no new information undermined earlier conclusions. The board's findings were backed by substantial evidence.
Regarding jet-plowing, the commission pointed out that it conflicts with minimum performance standards prohibiting dredging without substantial public benefit and feasible alternatives. The commission requested more core samples to assess the impact of jet-plowing on eelgrass and shellfish. Cape Wind contended that jet-plowing is essential for transmission line installation with lesser environmental impacts than other methods, citing that their nineteen core samples were sufficient according to DEP and permitting agencies. Cape Wind also proposed monitoring and mitigation measures to address environmental concerns.
The siting board determined that jet-plowing is consistent with environmental protection, supported by substantial evidence. It found no error in not requiring Cape Wind to conduct further core sampling. Regarding eelgrass, although the commission cited MPS 2.23.1, which mandates no significant adverse effects on eelgrass beds unless necessary for public benefit, the siting board concluded that eelgrass concerns did not hinder the construction and operation of the transmission lines. Cape Wind’s side-scan sonar surveys and diver inspections were deemed sufficient, and the company agreed to ongoing monitoring and mitigation efforts for eelgrass, reinforcing the findings with substantial evidence.
Concerning the transmission vault, the commission referenced MPS 2.2.2.1, which prohibits development in FEMA V-zones, noting the vault did not qualify as a "water-dependent use." The commission recommended relocating the vault to comply with regulations, but the siting board decided that the costs and drawbacks of relocation outweighed potential benefits, a conclusion also supported by substantial evidence.
The petitioners claimed the siting board did not adequately meet the “reasonableness of exemption” standard and argued for a broader interpretation that would consider the in-State impacts of Cape Wind's entire project. However, the siting board properly relied on prior findings and addressed the reasonableness standard in line with relevant energy policies. Lastly, the Alliance questioned the validity of a DEP regulation established in 2008, specifically 310 Code Mass. Regs. 9.12(2)(b)(10).
The water-dependent use regulation, as governed by Massachusetts General Laws Chapter 91, mandates that the Department of Environmental Protection (DEP) determine uses that require direct access to tidal or inland waters. DEP classified Cape Wind's proposed transmission lines as water-dependent, citing a rebuttable presumption that such uses serve a proper public purpose with a greater benefit than detriment to public rights. Chapter 91 prohibits licensing structures on Commonwealth tidelands unless necessary for water-dependent uses that also serve a public purpose.
DEP's regulation (310 Code Mass. Regs. 9.31(2)(a)) supports this by presuming water-dependent uses meet the public purpose requirement. The standard of review for challenges against these regulations is highly deferential, requiring challengers to prove the regulation is illegal, arbitrary, or capricious. The Alliance, which opposed the regulation, failed to demonstrate its invalidity, arguing that the definition of water-dependent uses excludes wind farms because they can be sited inland. However, the regulation specifically pertains to infrastructure delivering electricity from offshore facilities, not to the facilities themselves.
The Alliance's challenges to the water-dependent use regulation are based on the assertion that the Department of Environmental Protection (DEP) cannot classify any infrastructure facility associated with a generating facility as “water-dependent” without evaluating the impacts of the generating facility itself. This premise is deemed flawed, leading to the failure of the Alliance's claims. If a generating facility is located offshore in Federal waters, DEP lacks jurisdiction to assess its impacts under c. 91. However, if the facility obtains the necessary Federal permits and is constructed, related infrastructure like transmission lines must have a direct location in tidal waters to function properly. Therefore, DEP's regulation, which focuses on the infrastructure for transmitting electricity from the offshore generating facility and defines it as “water-dependent,” is considered rational and valid. The Alliance has not demonstrated that this regulation is arbitrary or contrary to c. 91, leading to the conclusion that the regulation's validity is upheld. Case SJC-10596 is remanded to the county court with a judgment affirming the Energy Facilities Siting Board's decision and declaring the regulation valid. In case SJC-10578, the judgment of dismissal is affirmed. Background information includes the siting board’s review of Cape Wind’s petition for a certificate under G. L. c. 164, with NEPA covering the offshore wind farm and MEPA focusing on the transmission project. The Siting Board operates under a legislative mandate to provide reliable energy with minimal environmental impact at the lowest cost. General Laws c. 164 requires approval from the siting board before commencing construction of an electric facility.
No construction permit for a facility can be issued by a state agency unless the siting board approves the petition for that facility. The term "facility" includes new electric transmission lines with a design rating of 69 kilovolts or more and a length of at least one mile on a new transmission corridor. In 2002, Cape Wind petitioned the Department of Public Utilities (DPU) for a determination that its transmission lines were necessary and in the public interest. The DPU chairman referred this petition to the siting board for consolidation with Cape Wind's other petition. However, the siting board bifurcated the petitions pending the completion of the Massachusetts Environmental Policy Act (MEPA) review. In May 2008, the siting board found the transmission project necessary and in the public interest, approving minor changes and granting a three-year extension to begin construction.
The commission argued before the siting board that its denial of Cape Wind’s development of regional impact (DRI) application was merely procedural and without prejudice due to insufficient information; however, the siting board ruled that this constituted a final denial on the merits, a decision the commission did not contest. According to General Laws c. 164. 69K, electric, gas, or oil companies may petition the siting board for a certificate of environmental impact and public interest, provided the facility can be constructed without disapprovals from state or local agencies, except for specific land interests.
In October 2008, Cape Wind submitted a new tidelands license application to the Department of Environmental Protection (DEP), replacing a previous application from December 2004 that had not been acted upon due to the incomplete MEPA process. On December 22, 2008, after public hearings, DEP issued a draft license, determining that the transmission project met the requirements of G. L. c. 91. DEP found the project to be a water-dependent industrial use of tidelands and stated it served a public purpose that outweighed any detriment to public rights in those tidelands, while preserving public access rights for fishing, navigation, and other activities. The draft license was conditioned on receiving all necessary federal, state, and local approvals, including a certificate under 69K.
On January 9, 2009, the Alliance to Protect Nantucket Sound, Inc. filed a claim for an administrative adjudicatory hearing regarding the Massachusetts Department of Environmental Protection (DEP) draft license under Chapter 91 and 310 Code Mass. Regs. 9.17. On July 10, 2009, the DEP stayed further proceedings pending the outcome of the case. Both the commission and the Alliance sought to limit the certificate proceeding to the record considered during the commission's DRI review and moved to dismiss on several grounds, which the presiding officer denied. The presiding officer granted Cape Wind's motion to restrict the certificate proceeding's scope to facilities within Massachusetts, specifically the transmission lines, excluding the wind farm and its in-state impacts.
The Alliance and Barnstable presented prefiled direct testimony on the wind farm's in-state impacts, which was excluded based on the presiding officer’s earlier ruling. Barnstable and the commission pursued declaratory relief under G.L. c. 231 A regarding a potential conflict between the Cape Cod Act and the siting board's enabling statute, G.L. c. 164. A Superior Court judge dismissed their complaint for failure to exhaust administrative remedies, leading to an appeal, which was granted direct appellate review. The court noted that the remaining issues from the Superior Court action were part of the appeal from the siting board's decision, thus not requiring further consideration of Barnstable's appeal from the Superior Court judgment.
In their petitions to the county court under G.L. c. 164 and G.L. c. 25, Barnstable and the Alliance included counts for declaratory relief concerning DEP regulations and whether federal law preempts state agencies from considering in-state impacts of the wind farm. They also questioned the siting board's authority to issue a tidelands license under Chapter 91 and to override the Cape Cod Act. The court recognized that the petitioners did not argue for separate declaratory relief, considering any such claim waived. The court assumed the commission qualifies as a "local agency or body" for the purpose of reviewing the two statutes in question. Additionally, it highlighted that the siting board must consider an electric company's petition for a certificate if construction is hindered by denials from any state or local agency.
The Cape Cod Act designates the commission as a "local board" for comprehensive permits under G. L. c. 40B, but does not classify it as a "state or local agency or body" for purposes of § 69K. The petitioners argue that the absence of explicit subordination to the siting board indicates legislative intent to maintain the commission's authority. Conversely, the siting board contends that the lack of an exemption for the commission’s DRI decisions from its jurisdiction suggests otherwise.
The petitioners also assert that the Barnstable Home Rule Charter supersedes the siting board statute, claiming that § 69K limits the siting board’s authority to disapprovals, conditions, or denials, and does not extend to the "repeal" of the regional policy plan (RPP). The court disagrees, stating that the siting board’s § 69K certificate effectively overruled the commission's denial of Cape Wind's DRI application without repealing the RPP. The petitioners failed to identify any specific inconsistency between the Barnstable Home Rule Charter and § 69K.
The excerpt also discusses the legislative history of § 69K, noting that in 1976, "local governments" was replaced by "a state or local agency or body," likely to clarify the inclusion of state entities. It highlights that throughout § 69K, permits for state and local agencies have been consistently referenced together, suggesting the amendment aimed to correct a nonconformity.
Lastly, it defines tidelands as encompassing shore and submerged lands between mean high water and the Commonwealth's seaward boundary, distinguishing between "Commonwealth tidelands," held in trust for public benefit, and "private tidelands." Portions of Lewis Bay and Nantucket Sound within the Commonwealth’s jurisdiction are classified as Commonwealth tidelands.
The term “facility” as defined in G. L. c. 164. 69K and the term “structure” in c. 91. 14 exhibit overlap, with Cape Wind's proposed transmission lines qualifying under both definitions. Cape Wind initially applied for a c. 91 license from the Department of Environmental Protection (DEP), which issued a draft license in December 2008, affirming that the project met c. 91 requirements. The siting board adopted DEP’s findings into its decision, incorporating a tidelands license equivalent, with DEP expressing no objections.
General Laws c. 164. 69O (3) allows the siting board to issue a 69K certificate that may not require complete compliance with existing laws. However, public trust obligations remain independent of these laws. The Commonwealth’s authority under G. L. c. 91 is not entirely aligned with its public trust obligations, and the siting board cannot exempt a facility from public trust requirements without specific legislative action. Case law supports that public trust obligations must be fulfilled by applicants in the context of c. 91 licenses.
Furthermore, statutory provisions emphasize the involvement of DEP in siting board decisions related to c. 91 licenses, with G. L. c. 164. 69L and 69N designating "parties in interest" in certificate proceedings to include those permitted to intervene. DEP participated as an intervener in Cape Wind's 69K proceeding. Additionally, G. L. c. 164. 69H designates the Secretary of the Executive Office of Energy and Environmental Affairs (EOEEA), which oversees DEP, as the chair of the siting board, underscoring DEP's critical role in the process.
Legislative provisions are seen as measures to support the siting board's duty to uphold the Department of Environmental Protection's (DEP) statutory and regulatory responsibilities, particularly regarding public trust rights in the context of a 69K certificate application. In the case of Moot I, the court determined that DEP overstepped its authority by exempting filled landlocked tidelands from licensing under G. L. c. 91, effectively giving up control over these lands and public rights without legislative consent. In contrast, the current situation does not indicate any relinquishment of public rights in the relevant tidelands. It is emphasized that an explicit legislative statement is required to relinquish public rights and delegate authority to manage these rights. Case law differentiates between a legislative delegation of authority for regulation under conditions and a permanent surrender of public rights, which necessitates specific legislative action and findings. The court noted that while the Commonwealth can delegate authority to regulate tidelands to state agencies or municipalities, such delegation must be clearly articulated. Statutory provisions for delegation are typically broad and lack detailed directives for the exercising agency.
The Legislature has granted the siting board the authority to issue revocable Chapter 91 licenses for the use of tidelands, which includes the responsibility to manage public trust rights. Petitioners have raised concerns regarding the wind farm's turbine generators, citing potential negative impacts on state waters, air space, lands, navigation, aviation, fisheries, bird populations, water quality, and public safety. The 1997 Restructuring Act mandates that the siting board separately review proposed generating facilities, like wind farms, from transmission facilities. Federal law asserts U.S. exclusive title over lands beneath the sea, limiting state claims to coastal seabeds, which Massachusetts acquired through the Submerged Lands Act of 1953. The siting board's authority is constrained by federal jurisdiction, as acknowledged in the legislative history of the siting board statute established in 1973 and amended in subsequent years. Additionally, federal statutes require review of projects affecting state coastal zones, conducted by the Coastal Zone Management Office. General Laws c. 164.690 outlines that the siting board's decisions must include findings on the energy needs of the market area and the facility's compatibility with environmental protection, public health, and safety considerations.
Construction and operation of the facility must comply with existing state and local laws, with an emphasis on minimizing environmental impact while providing necessary energy supply at the lowest cost. The siting board concluded that Cape Wind could not secure local wetlands permits or road opening permits without DRI approval and decided to include these permits in the Certificate to prevent delays, having already reviewed the project comprehensively over seven years with active participation from local permitting entities. The certificate affirmed that Cape Wind met the requirements for a c. 91 license and included a 401 certification from DEP under the Federal Clean Water Act and the Massachusetts Clean Waters Act, along with necessary highway access and rail crossing licenses.
The 1997 Electric Restructuring Act shifted the siting board's focus from ensuring a "necessary energy supply" to a "reliable energy supply," allowing market forces to dictate the need and cost of facilities while limiting environmental impact reviews. The siting board was not required to re-evaluate previously determined issues of need or cost in the certificate proceeding. The record showed no significant changes regarding the need for the transmission project, and the commission's challenge to the qualifications of Cape Wind's experts was dismissed as unsupported; hearsay was deemed acceptable in administrative proceedings. Additionally, regulatory provisions linked the infrastructure facility's water-dependent status to the existence of all necessary federal permits, consistent with DEP and the siting board's approach, which conditioned the c. 91 license on obtaining those permits.
