Town of Barnstable, Massachusetts v. Berwick

Cape Wind, a for-profit renewable-energy-development company, sought to develop a wind-energy-generation project in federal waters in the Nantucket Sound. The project was to comprise 130 wind turbines over a 24-square-mile area of open ocean. The project faced significant opposition from residents of nearby Cape Cod, Martha’s Vineyard, and Nantucket. In 2001, Cape Wind applied for a permit for its project. In 2002, the United States Army Corps of Engineers granted Cape Wind a permit to build a meteorological tower to gather data for its project. The Alliance to Protect Nantucket Sound (alliance) (plaintiff) opposed the permit and filed a suit challenging the permit for the tower, but the suit was dismissed. In 2005, the Massachusetts Energy Facilities Siting Board (board) approved the construction of two undersea transmission cables to connect the proposed project to the regional power grid. The alliance filed a suit protesting the approval. In 2007, Cape Wind received approval of its Final Environmental Impact Report (report). A group of opponents to the project filed a suit in response. Both the suit against the board and the suit regarding the report were dismissed. Around the same time, the Town of Barnstable (plaintiff) filed suit against its own local siting board. In 2010, the secretary of the United States Department of the Interior gave federal approval for the project and issued a lease for Cape Wind to operate its generation facility. Opposition from local groups continued even after Cape Wind received all requisite federal and state approvals. In 2009, pursuant to the Massachusetts Green Communities Act, which required Massachusetts utilities to enter into long-term power-purchase agreements with renewable-energy generators, National Grid, an electric utility company, entered into a power-purchase agreement with Cape Wind. In 2010, the Massachusetts Department of Public Utilities approved two power-purchase agreements between National Grid and Cape Wind. The alliance and Barnstable challenged the contracted prices in the power-purchase agreements as improper because the prices were above market price. The agreements were challenged both in Massachusetts state court as violating the dormant Commerce Clause of the United States Constitution and with the Federal Energy Regulatory Commission as violating the Supremacy Clause of the Constitution. Both challenges were rejected. Opposition groups mounted other challenges based on contracts that another utility had entered into with land-based wind-energy generators. Ultimately, Cape Wind entered into a power-purchase agreement with NSTAR, a public utility, which was approved by the Massachusetts Department of Public Utilities. The alliance did not challenge this approval. Fourteen months after this approval, the alliance and Barnstable filed the present suit.