The Wampanoag Tribe of Gay Head (Aquinnah) has filed a lawsuit to stop the development of a massive offshore wind energy plant in an area of Nantucket Sound that is sacred to the People of the First Light. The action, filed in the U.S. District Court for the District of Columbia on July 6, names the Bureau of Ocean Energy Management, Regulations and Enforcement (BOEMRE, formerly Minerals Management Service), its director Michael R. Bromwich and Secretary of the Interior Department Ken Salazar in their official capacities as defendants and cites multiple violations of the National Environmental Policy Act, the National Historic Preservation Act, and the Administrative Procedure Act.
In April, BOEMRE approved Cape Wind’s proposal to build 130 turbines, towering 440 feet above ocean level spread across almost 50 square miles of Nantucket Sound approximately 3.5 miles off the coast of Massachusetts. The project also includes plans for a 10-story electrical service platform with 40,000 gallons of transformer oil and 1,000 gallons of diesel fuel and a helicopter pad, a 66.5-mile submarine transmission-cable system, and two 115-kilovolt lines totaling 25 miles connecting to the mainland power grid. The wind installation would be approximately 3.5 miles offshore.
“The Project will harm the Tribe’s religious, cultural, and economic interests by degrading Nantucket Sound ecosystem and, in particular, disturbing the currently unblemished view of the eastern horizon, both of which are of immense spiritual importance to the Tribe; by disrupting or preventing fishing on Horseshoe Shoal (within Nantucket Sound) as a source of sustenance, subsistence, and income for individual tribe members,; and by disturbing the sea bed, which may result in irreparable damage to historically significant and culturally and spiritually important archeological resources,” the lawsuit says.
The project would be devastating to all aspects of tribal life, said Bettina Washington, Tribal Historic Preservation Officer. “Cape Wind will destroy our traditional cultural property, Horseshoe Shoal and the surrounding Nantucket Sound, where our Tribe has flourished and continues to utilize for significant cultural and spiritual ceremonies and practices,” Washington said, according to a press release. “The Aquinnah Wampanoag is just one of over a dozen parties to file suit against the permitting of the Cape Wind Project and represents one of many groups that are vital stakeholders in the future and livelihood of Nantucket Sound.”
In June, a coalition of Cape Wind opponents, including the Alliance to Protect Nantucket Sound, the Associated Industries of Massachusetts (AIM) , TransCanada and the New England Power Generators Association, won a significant legal victory when the Massachusetts Supreme Judicial Court issued a ruling dismissing a motion by Cape Wind that would have suppressed evidence that its power purchase contract with National Grid is two-and-a-half times the cost of green energy from other providers. The court decision ensures that the full body of evidence against Cape Wind will be examined during briefing and oral argument when it convenes in September.
The Aquinnah lawsuit focuses on Interior’s violations of federal laws and regulations, and the failure to conduct meaningful government-to-government consultation with the tribe regarding the project’s adverse effects, or consider opposition by state and federal agencies. The Massachusetts’ Office of the State Historical Preservation , the National Park Service, the National Register of Historic Places and the , Advisory Council on Historic Preservation all deemed Nantucket Sound to be a significant traditional, cultural, historic and archaeological property and advised Interior against approving the Cape Wind project.
The Massachusetts Historical Commission concluded in its Opinion of Eligibility for listing in the National Register of Historic Places that science had caught up with indigenous oral tradition. According to the lawsuit, the commission noted that “a major scientific discovery in Nantucket Sound was made during archeological survey for the Cape Wind energy project and during previous geological studies” and that the discovery historically confirmed the tribe’s oral history that Nantucket Sound is a former habitation site and likely burial ground.
The Advisory Council on Historic Preservation submitted extensive formal comments to the Interior Department in its recommendation to Salazar not to approve the project, the lawsuit notes. The council said, among other things, that Cape Wind would have “a significant adverse effect” on the Wampanoag tribes’ cultural practices in relations to six traditional cultural properties; that the project would result in physical, destruction, damage and alteration of the Nantucket sea bed, some of which ”would be permanent, unavoidable, and not subject to mitigation”; that approving “the large scale industrial facility as proposed is inconsistent with the policies and admonitions of the National Historic Preservation Act and Executive Order 13287.
After the Keeper of the National Register issued its official notification in January 2010 that Nantucket Sound is eligible for listing, Salazar issued a statement in which he noted, “As we begin to develop (offshore wind) resources, we must ensure that we are doing so in the right way and in the right places. The Keeper’s finding that Nantucket Sound is eligible for listing in the National Register provides information that will help us to undertake final consultations and analysis of potential impacts of wind development on historic and cultural resources in Nantucket Sound,” the lawsuit says. In early March 2010, Salazar announced he was terminating consultation with the tribe and other parties on the ground that the consulting parties could not reach agreement on suitable mitigation for the direct and indirect adverse effects of the Cape Wind project, the lawsuit says. Despite objections to the project from the Aquinnah and Mashpee Wampanoag tribes, environmental groups, state and federal historic preservation agencies, local municipalities, shipping and fishing organizations, industrial and energy coalitions, he concluded that “the public benefits weigh in favor of approving the Cape Wind project at the Horseshoe Shoal location.” He approved the project on April 28, 2010.
The lawsuit puts forward three claims: that the federal government failed to adequately analyze the environmental impacts in violation of the National Environmental Policy Act and the Administrative Procedure Act; that it failed to supplement the Final Environmental Impact Statement or even to take a “hard look” to determine whether a supplement was necessary, despite evidence that it was; and that it failed to engage in meaningful and adequate Section 106 of the Advisory Council on Historic Preservation consultation with the tribe, including a violations of the “mandatory duty under National Historic Preservation Act and its implementing regulations to recognize the formal government-to-government relationship between the federal government and Indian Tribes, and conduct consultation in a manner respectful of tribal sovereignty and sensitive to the concerns and needs of Indians tribes.”
The tribe seeks injunctions forcing the withdrawal of federal approval until the violations have been remedied, preparation of a supplemental Environmental Impact Statement, and costs under the Equal Access to Justice Act.
“The tribe has previously stated we are not against renewable energy projects; however we have also said we would pursue all options, including legal action, to protect our cultural heritage and places,” Washington said. “The federal agencies and proponents can no longer choose to ignore us or the 10 other pending lawsuits they currently face. These pending challenges against the Cape Wind Project could ultimately stop the construction of the project”