Golden Gate University Environmental Law Journal


This article presents the story of one renewable energy alternative that is available wherever the wind blows strong and steady. If that alone is not sufficient enticement to read further, the authors also promise to present one of the most engaging permitting sagas ever known to this field. Indeed, the Cape Wind Energy project was held captive by the permitting process for nearly a decade – in stark contrast to numerous offshore oil projects – due to the imposition of disproportionally rigorous regulatory scrutiny and the dogged political pressure applied by a few wealthy homeowners with ocean views in the direction of the proposed wind farm.

This article addresses Cape Wind, the nation’s first offshore wind energy project proposed for Nantucket Sound in federal waters adjacent to Massachusetts. Part I provides an overview of the project and its importance and describes its long and complicated permitting path. Part II analyzes how the Cape Wind experience highlights flaws in the federal permitting process and offers recommendations for remedying those flaws. Part III describes the complex jurisdictional issues that Cape Wind faced because the wind turbines are proposed to be located in federal waters, while the electric cables that transmit the electricity to the mainland would lie in the seabed of state waters. Part III also analyzes the federal and state court opinions, and relevant statutory authority, that ultimately resolved the jurisdictional disputes. Part IV concludes with a brief summary of Cape Wind’s long-term prospects.