Alliance to Protect Nantucket Sound v. Energy Facilities Siting Board

Cape Wind, LLC proposed to build an offshore windfarm on federally controlled seabed in Nantucket Sound, which was located off the southern Cape Cod coast in Massachusetts. To transmit the energy generated by the windfarm to energy facilities on-shore, Cape Wind needed to run transmissions lines through state-owned tidelands. Massachusetts, like most coastal states, had exclusive authority over the coastal waters and submerged tidelands located within three miles of the shoreline. The federal government had exclusive jurisdiction over submerged lands between coastal states’ three-mile seaward boundaries and the high seas. Cape Wind obtained a permit from Massachusetts’s Energy Facilities Siting Board (EFSB) (defendant) to run the necessary transmission lines through Massachusetts tideland. The Alliance to Protect Nantucket Sound (Alliance) (plaintiff) challenged the EFSB’s decision in county court, arguing that (1) only the Department of Environmental Protection (DEP), not EFSB, had the authority to impinge on public-trust tidelands access rights by licensing construction in the tidelands; and (2) because EFSB did not have authority to impinge on public-trust tidelands rights, EFSB did not have authority to issue Cape Wind permits to construct and operate transmission lines in the tidelands. The county court proceeding was reserved and reported to the Massachusetts Supreme Court for determination.