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.

Offshore Wind Energy Turbines Pose No Threat to Air Navigation and Traffic Operations According to the FAA

The Federal Aviation Administration affirmed its previous decisions that the Cape Wind offshore wind energy project poses no threat to air navigation and traffic operations. This is the fourth time the FAA’s aeronautical study has concluded that the 130 wind-turbine farm would not present a hazard since the project was first reviewed in 2002. The agency must evaluate the project and make a determination every 18 months. This latest determination expires in February 2014.

The same decision was made last year by the FAA; however, the D.C. Circuit Court concluded that the agency had not properly applied its handbook to the project’s evaluation. The court required the agency to go back and analyze whether the project adversely affected visual flight procedures. This latest study showed no adverse effect.

As we discussed in our July 2011 post entitled, “Wind Turbines Effect on Radar Systems and Aviaiton Security,” wind turbines affect the safety of the general and business aviation sector because wind towers may be constructed along routes typically flown by smaller aircrafts. The Cape Cod and Nantucket Sound area, where the Cape Wind project is located, is served by several public use airports, including Barnstable Municipal Airport-Boardman/Polando Field (HYA), Nantucket Memorial Airport (ACK), and Martha’s Vineyard Airport (MVY), as well as one military airport, Falmouth Cape Cod Coast Guard Air Station (FMH). According to the FAA’s determination, the Cape Wind project poses no hazard to flight operations in and out of these airports.

Attention will now turn to the litigation pending in the United States District Court for the District of Columbia (Civil No. 10-cv-01067). In this matter, several community groups and one Native American tribe brought a consolidated action against the U.S. Department of Interior. The action alleges that in approving the Cape Wind project, the agency did not conform to law and perform the due diligence required in evaluating the potential impact the project would have on the environment and the cultural and historical resources of the tribe.

Sullivan & Worcester represents the Conservation Law Foundation, a non-profit environmental group with offices throughout New England, in the matter. CLF is an amicus curiae party supporting the U.S. Department of Interior’s approval of the project.