D.C. Circuit Court of Appeals Takes FAA to the Woodshed in Cape Cod Wind Farm Case

The proposed location of the first offshore wind farm, 130 wind turbines, each 440 feet tall, in a 25 square mile in Nantucket Sound, has been controversial from the start. The controversy has arisen partially because of Cape Cod’s high profile residents who would be visually impacted (such as the Kennedy family), and partly because of the proximity of the Town of Barnstable which is owner and operator of a municipal airport.

Now the courts have weighed into the controversy. In Town of Barnstable, Massachusetts v. Federal Aviation Administration, 2011 W.L. 5110119 (C.A.D.C.), decided on October 28, 2011, the D.C. Circuit Court of Appeals held that: (1) the petitioners in two consolidated cases, Barnstable and Alliance to Protect Nantucket Sound, had standing to challenge the Federal Aviation Administration’s (“FAA”) determination that the wind farm would not pose a hazard to air navigation under FAA regulation 14 C.F.R. Part 77; and (2) FAA’s finding of “no hazard” to air navigation under that section was a result of the agency’s failure to properly apply its own regulations and the guidance in its own Order JO 7400.2G (April 10, 2008) (“Handbook”).

The first issue, that of standing, is jurisdictional in the Federal Appellate Courts. That is, if the petitioner cannot show, at the most basic level, that the challenged action caused injury to its own interests; that “the injury is fairly traceable to the challenged action,” Id. at * 2; and that a favorable decision by the court could likely redress, or remedy, that injury, the court does not have jurisdiction to hear the case.

The FAA disclaimed both causation and redressability. The Court held, however, that, while “FAA’s hazard determinations, by themselves, have ‘no enforceable legal effect,’” Id., quoting BFI Waste Systems v. FAA, 293 F.3d 527, 530 (D.C. Cir. 2002), in this case, the Department of Interior (“DOI”), the ultimate arbiter of whether the wind farm receives government approval, had “repeatedly assigned the FAA a significant role in the decision making process,” Id., by, among other things: (1) requiring Cape Wind Associates, the project sponsor, not begin construction until receipt of FAA’s final hazard determination; and (2) requiring that Cape Wind comply with all FAA proposed mitigation measures, even those imposed after the signing of the lease for the required property with DOI.

Ultimately, the Court held that “given Interior’s incorporation in the lease of all past and prospective mitigation measures proposed by FAA, its conditioning of initial construction on the final FAA decision, and its persistent attention to the safety mandate in its authorizing statute . . . we find it likely, as opposed to merely speculative that the Interior Department would rethink the project if faced with a FAA determination that the project posed an unmitigatable hazard.” Id. at * 5. Thus, the Court found the FAA’s action redressable by an order of the Court sending the project back to FAA for reanalysis using correct procedures, even if the results of the reanalysis were within the FAA’s discretion and might not be different than the original no hazard determination.

Perhaps most surprising is the Court’s analysis on the second issue. Using as a benchmark the FAA’s own Handbook, the Court found that the FAA had improperly relied on only one standard in the Handbook for determining a hazard, that set forth in § 6-3-8(c)1 which states: “A structure would have an adverse [aeronautical] effect upon VFR air navigation if its height is greater than 500 feet above the surface at its site, and within two statute miles of any regularly used VFR route.”

The Court then pointed to various other standards for determining whether a project would have an “adverse effect,” including those articulated in § 6-3-3. Finally, the Court found that the record was replete with evidence that the wind farm would have an “adverse effect” on Visual Flight Rule (“VFR”) operations, causing them to be re-routed, or to fly in closer proximity to the wind farm structures than the minimum 500 foot distance permitted by FAA regulation 14 C.F.R. § 91.119.

What distinguishes this case from most of its predecessors is the Court’s deviation from the traditional deference accorded to determinations by a government agency acting within the course and scope of its authority. The reason why the issue of deference did not arise is that, cannily, the petitioners did not pit their own experts’ opinions against those of the FAA, or engage in a “battle of the experts.” Instead, petitioners turned the Court’s attention to the FAA’s misapplication of its own guidance, and the study conducted by its own consultant, Mitre Corporation, for the proposition that numerous flights would be at an altitude of 1,000 feet or less over the area in which the turbines would be built, Id. at * 6, and that, once built, the flights would be at less than the 500 foot minimum altitude over the structures.

In summary, while the Court offered no guarantees that the FAA or DOI would eventually reach different conclusions, it opined that the evidence in the record showed “the project may very well be such a hazard,” Id. at * 7, and held the FAA to the “standard requirement of reasoned decisionmaking,” rather than “catapulting over the real issues and the analytic work required by the Handbook.” Id. Prospective petitioners can only hope that this analysis by the Court will guide it when faced with similar FAA deviations from its own guidance in the future.

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