Business Aviation Law Blog

FAA's No Hazard to Air Navigation Determinations Challenged

As we discussed earlier in our post entitled "Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA," the Federal Aviation Administration (“FAA”) issued No Hazard to Air Navigation determinations for the Cape Wind offshore wind energy project located in the Nantucket Sound. The determinations mean that the project’s 130 wind turbines pose no threat to air navigation and traffic operations in the area.

Shortly after the FAA’s determinations were issued, the Alliance to Protect Nantucket Sound asked the United States Court of Appeals for the District of Columbia to review the FAA’s aeronautical studies that led to the no hazard determinations. According to the Petition for Review, the Alliance questions whether the FAA complied with the court’s October 2011 decision in Town of Barnstable v. FAA, 659 F.3d 28 (D.C. Cir. 2011), which vacated the FAA’s earlier no hazard determinations for the Cape Wind project, and remanded the matter back to the FAA for further study and analysis.

The case is pending in the United States Court of Appeals for the District of Columbia Circuit, Alliance to Protect Nantucket Sound v. FAA (Civil No. 12-cv-1363). This review will be closely watched by the wind energy industry and the states. If the FAA’s determinations stand, the Cape Wind project and offshore wind energy will move one step closer to development and operation.

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