In a rebuke to the litigious strategy of a group bent on stopping a massive wind farm in the waters off Cape Cod, a federal judge in Massachusetts dismissed their latest lawsuit and warned that their legal campaign was becoming “a vexatious abuse of the democratic process.”
U.S. District Judge Richard Stearns in Boston threw out the case on Friday, siding against what he called an “obdurate band of aggrieved residents of Cape Cod and the islands” who oppose the project. The developer, Cape Wind Associates LLC, plans to construct 130 wind turbines over 24 square miles of ocean in view of some of the most prime Northeast real estate.
Jenner & Block filed the case on behalf of the Alliance to Protect Nantucket Sound, which is led by billionaire chairman William Koch (a Nantucket property owner), and three Cape Cod businesses. The town of Barnstable on Cape Cod is also a plaintiff.
The complaint, filed Jan. 21, alleged that Massachusetts and two state agencies violated the “dormant” Commerce Clause and the Supremacy Clause of the Constitution when the state’s Department of Public Utilities approved an energy-supply contract between Cape Wind and NSTAR Electric Company, which agreed to buy the power generated. The plaintiffs alleged that the deal would force them to pay higher energy prices. In Friday’s 24-page opinion, Stearns concluded that the suit was barred by the Eleventh Amendment, which prevents states from being sued without their consent. The judge noted that even if he reached the merits of the case, he would rule against the plaintiffs, finding their allegations misleading and untrue. The court entered final judgment for the defendants on Monday.
The ruling is a victory for Baker & Hostetler partners Geraldine Edens and Christopher Marrar, who represent Cape Wind. The company is also represented by David Rosenzweig of Boston’s Keegan Werlin. Defendant NSTAR is represented by John Donovan Jr. of Ropes & Gray. Timothy Casey of the Massachusetts Office of the Attorney General is the lead attorney for the state.
The wind farm’s opponents, led by the Alliance to Protect Nantucket Sound, have filed 32 lawsuits over ten years to try to stop the project, according to Baker & Hostetler’s Edens. Of those, 26 have failed and five have been withdrawn, Edens said. The one exception involved an issue that is now moot, she said. Audra Parker, the CEO of the Alliance, disputes those figures, citing at least two victories.
Stearns alluded to this history in his opinion. In a final footnote, the judge noted that the Cape Wind project has been repeatedly reviewed and approved by public officials and judges, and has been found to be lawful. “There comes a point at which the right to litigate can become a vexatious abuse of the democratic process,” he wrote. “For that reason, I have dealt with this matter as expeditiously as possible.”
We contacted lead plaintiffs counsel Matthew Price of Jenner & Block but did not hear back.
In a statement on its website, the Alliance to Protect Nantucket Sound said the ruling is “based on a legal technicality” and maintains that the NSTAR-Cape Wind contract is unconstitutional. The group said it plans to appeal.