Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board

Summary

The Massachusetts Supreme Judicial Court affirmed the Energy Facilities Siting Board’s conditional approval of transmission lines connecting the proposed Cape Wind facility to the regional electric grid. The court held that the board acted within its discretion by adopting a revised approach to determining need for transmission lines and by issuing a conditional permit requiring Cape Wind to obtain necessary permits before construction. The court also rejected claims that the conditional approval improperly delegated the board’s statutory responsibility or lacked adequate procedural notice.

Holdings

1. The Board acted within its discretion in developing and applying a new approach through adjudication and in addressing the legal standard after the evidentiary record was complete, because the parties had reasonable notice of the issues and an opportunity to present evidence and argument.
2. The Board lawfully issued a conditional permit requiring Cape Wind to submit all permits necessary to begin construction of the wind farm before construction of the transmission lines could begin.
3. The conditional approval did not improperly delegate the Board's duty. The Board independently found that existing transmission capacity was inadequate, and the future submission of required wind-farm permits would conclusively establish the remaining condition that the generator was likely to become available.
4. The Board did not abuse its discretion by refusing to reopen the record to include the draft environmental impact report.
5. The court declined to disturb the Board's interpretation of the statutory financial-information requirement, even assuming the statutory language could reasonably be read in the manner urged by Alliance.

Questions Presented

1. Whether the Energy Facilities Siting Board acted within its discretion by announcing and applying a new approach to determining the need for transmission lines after the evidentiary hearing and through adjudication rather than rulemaking.
2. Whether the Board lawfully issued a conditional approval requiring the applicants to obtain permits for the proposed wind farm before constructing the related transmission lines.
3. Whether the Board improperly delegated its statutory duty to make an independent finding of need by conditioning approval on future permitting events.
4. Whether the Board abused its discretion by declining to reopen the administrative record to include a draft environmental impact report.
5. Whether the Board erred in declining to require specific financial information under G. L. c. 164, § 69J.

Disposition

affirmed