New England is generally regarded as eco-friendly. Remember Massachusetts v. EPA, the Supreme Court case that ensured that the federal environmental protection agency regulate carbon dioxide and other greenhouse gases as pollutants?  The majority of the petitioners in that case were New England states and cities.  How is it, then, that a wind farm proposed off the New England coast which could power more than 420,000 households, is opposed so vociferously?

Enter a coalition of wealthy homeowners, a powerful lobby group, politicians and business owners with definite, self-motivated interests.  Enter NIMBYism.

From: Edinformatics.com

NIMBY is just one of a number of acronyms used in a belittling way to describe opponents of building projects or infrastructure developments. Most often, community groups will lobby to oppose the siting of a nuclear energy plant, a prison, or a landfill.  Here, the group opposing this green energy development project is composed of the recently deceased Sen. Edward Kennedy and William Cronkite, Sen. John Kerry, and a wind farm opposition group called the Alliance to Protect Nantucket Sound funded by Bill Koch, Doug Yearley , and other wealthy denizens of these summertime beach communities.

The controversy over this 25 square foot wind farm, which would be composed of 130 turbines located several miles from the Massachusetts coast, has garnered the attention of journalists and documentary filmmakers.  Why would an effort to secure America’s future energy security be so opposed?

Wendy Williams and Robert Whitcomb recently wrote a book about the project’s history called Cape Wind: Money, Celebrity, Class, Politics and the Battle for Our Energy Future on Nantucket Sound. In an interview, one of the authors states that the fight over Cape Wind is a case of a “a very small group of people, with more money than most of us can possibly imagine, who decided from the very beginning [...] that they didn’t want it there, it would upset their Martini time”.  Is that an accurate assessment?

The Cape Wind project – or any other project that is being opposed – may be challenged on two fronts:  common law and statute.  Under the common law, environmental litigation is predicated on six legal theories: nuisance, trespass, negligence, strict liability, prior appropriation, and riparian rights. The majority of the beach community residents who speak out against the Cape Wind project do so on the basis of aesthetic nuisance.

Let’s break this down, shall we?

Nuisance is a broad legal concept.  It includes anything that disturbs the reasonable use of your property or endangers life and health or is offensive.  And to be actionable, meaning that the court can grant you relief, the level of interference must be more than merely aesthetic.  Let me explain.  If I paint my house exterior a bright pink color and dot it with purple polka dots, you may think that it is an eyesore.  You might be annoyed enough to sue me in court and to ask the court to force me to paint the home exterior in a more pleasing or conventional color.  My painting of my home, however, does not create a nuisance for you.  Instead, some condition on my property or some action that I take on my property must interfere with your quiet enjoyment of your own property.  If I raise pigs in my garage, and the smell from their sty wafts over the fence dividing our property and causes you to gag every time you come outside, your claim for nuisance would likely be recognized on several grounds.

First, it may be recognized because as a matter of fact, the foul odor I created is invading your property and causing you to become physically sick. An alleged nuisance in fact is an issue of fact to be determined by the jury, who will decide whether the thing or act in question created a nuisance by examining its location and surroundings, the manner of its conduct, and other circumstances. A determination that something is a nuisance in fact also requires proof of the act and its consequences.

Second, and more rare, is a situation in which your claim might be recognized as a nuisance per se.  Nuisances per se rarely exist, because legislatures rarely deem an action or a structure to be unlawful or unauthorized.   There are few state or federal statutes or case law declaring actions or structures to be a nuisance in and of themselves. Nor are many activities or structures in and of themselves and under any and all circumstances a nuisance, which is how courts determine whether or not an action or structure is a nuisance per se.

Here, the beach community residents who oppose the siting of the Cape Wind wind farm argue – as Robert F Kennedy did in his New York Times Opinion Editorial -  that the presence of the farm interferes with the residents ocean views and nighttime star gazing.  Cape Wind’s President, Jim Gordon, paints a different picture.  Pointing out that the proposed location of the farm would be approximately 5 miles from the south coast of Cape Cod and almost 15 miles from Nantucket, he argues that the wind towers would be barely visible when viewed from the nearest beach.  A Massachusetts Superior Court, however, was not persuaded by that argument.  Which leaves the wind farm’s opponents with numerous challenges on statutory grounds.

A large wind farm project requires numerous local, state, and national permits and environmental reviews.  If just one permit isn’t issued, the project could stall indefinitely.  A statute outlines standards and criteria that must be met before a project proposal is approved.  The Cape Cod wind farm must pass review through each agency.   And, each review must be consistent with the standards enumerated in the statute, that means there has to be a reasonable basis for each decision that is made during the reviewing process. A partial list of the Cape Wind permitting and review authorities include:

• Minerals Management Service (lead agency)
• US Army Corps of Engineers
• US Environmental Protection Agency
• National Marine Fisheries Service
• US Coast Guard
• Federal Aviation Administration
• Massachusetts Executive Office of Environmental Affairs
• Massachusetts DEP—Division of Wetlands and Waterways
• Massachusetts Coastal Zone Management
• Cape Cod Commission

What is the lesson for anyone who wants to challenge a project?  There are numerous points during which an opposed project may be derailed by a diligent and passionate opposition group that understands the review process.

Posted by Krystyna on January 19, 2010 at 11:34am.