Cape Wind, The Rule of Law And The Choices We Make

Secretary of the Interior Ken Salazar has announced that he will make a permitting decision regarding Cape Wind by April. He has requested public comment on the project before February 12. Comments can be sent here and here.

The long saga of Cape Wind’s permitting efforts has proven to be a classic example of how well intended environmental regulations can be abused and hypocritically turned against very environmentally responsible projects.

The story of Cape Wind should be taught in Law Schools as an example of how the rule of law guaranteed by our constitution and precedent in law at least back to the Magna Carta can been manipulated and abused by politically connected cynics.

Starting in 2001, Cape Wind was subject to an exhaustive four year permitting process coordinated by the US Army Core of Engineers under the National Environmental Policy Act (NEPA) and involving seventeen state and federal permitting agencies. When the results proved conclusively that the project would have no significant negative impacts of any kind, powerful politicians from both parties got the regulations changed so that the water views from their friend’s mansions on the Cape Cod would not be impacted.

A new regulatory process required the NEPA process to start completely over under the purview of the US Department of Interior’s Minerals Management Service. After another four or five years of intense study by multiple agencies, again the project was proven conclusively to have only positive impacts on the environment, on the economy and on our future. The MMS staff and all the reviewing agencies recommended the project be approved.

Recently, project opponents working with members of local Native American tribes have tried to derail the project again claiming that the waters in which the Cape Wind is to be built were once dry land which may contain ancient burial sites and that their religion requires unobstructed views of these sacred waters. It is perhaps telling that these objections were never raised to block marinas, pleasure boats and all sorts of other modern offenses that might blight these sacred views.  And one might also wonder about the religious impact when oil spills have polluted those waters making fuel deliveries to the Cape’s only power plant.

Of course cultural and historic heritage issues are considered fully and very carefully as part of the NEPA review process and should have been raised much earlier. It’s not as if those making these claims were unaware of the permitting process which has now been done twice and which provided them every possible opportunity to intervene in a timely and appropriate manner. What new information is now being brought to bear and why wasn’t it provided earlier? If there is nothing new being presented, then why should the Department of Interior effectively reopen the permitting process to review these matters?

The delay that has already been granted in issuing the permits to build Cape Wind in order to consider these late concerns is the most flagrant kind of abuse of the rule of law that is fundamental to the preservation of our civilized society. If such claims are allowed to derail Cape Wind at this late date, then what is to stop any opponent of any project ever proposed anywhere from hiring a couple of Native Americans after the permitting process is completed to claim the project is on their sacred grounds or blocks their sacred views? What is to prevent anyone alleging any other religious beliefs to assert that anything that they don’t happen to personally like should be stopped in its tracks and claim government protection against whatever may happen to offend their purported religious heritage?

The Constitution grants us all freedom to practice religion as we wish, but not at the expense of the Constitutional rights of others, nor at the expense of the fundamental rule of law in our land.

If we allow the regulatory goal posts to continually shift after a project is proposed, based on arbitrary environmental, religious or any other kind of claims, then we will have all lost the protection of the rule of law that our nation and our prosperity is based on. The corruption inherent in abuses such as that now underway in this obstruction and that which Cape Wind has earlier been subjected to, undermine our freedom and every constitutional protection we are granted as Americans.

Regulators from all the state and federal agencies overseeing this project have done their job very well – twice. From their comprehensive reviews, it is very apparent that the only real issue ever seriously in question is the subjective aesthetic impact of the project.

But the aesthetic question is not a question of Cape Wind vs. a pristine world. The question is far larger than the aesthetic impact of a few wind towers barely visible over the horizon. Like the rest of America, the Cape and Islands need energy. Aesthetic blights from mining, refining, delivery and disposal of fuels for oil, gas, coal and nuclear power plants, and the larger impacts of those technologies on our society, should be given serious consideration in evaluating Cape Wind. The rights, aesthetic concerns and religious sensibilities of those impacted by the entire systems delivering energy to Cape Cod and the Islands must be give equal weight to the concerns of the Cape Wind opponents.

The craziest part of all this is that from the closest shores, Cape Wind will be barely visible just a couple degrees above the horizon, and only on a clear day.

As I have testified on behalf of the Northeast Sustainable Energy Association in Army Corp of Engineer’s hearings on Cape Wind:

“The choice we face goes far beyond local aesthetics. Will we choose to continue our dependence on polluting fossil fuels from the Middle East? Will we choose a future plagued by international conflict, terrorism and climate change implicit in fossil fuel dependence? Will we choose to forgo a golden opportunity to provide clean energy and good jobs for the region? The real question is whether we will choose a compromised future or the tremendous potential of sustainable prosperity.”

Perhaps those opposing Cape Wind are not willing to make the choices necessary for our nation to remain a free and prosperous. But as a nation, we have real choices to make.

We can choose to get serious about creating clean renewable energy solutions at home and exporting those solutions of peace, hope, and prosperity abroad, or we can continue to waste our treasure and send our troops off to die fighting for oil in places like Iraq. Many Cape Wind opponents say they support renewable energy. But empty words do not solve the problems our addiction to oil has caused. Words alone do not help the families of the brave Americans sent to make the ultimate sacrifice in the Persian Gulf.

Today, wind power is cost competitive with conventional power plants. The wind industry has grown about forty percent each year for over a decade. Wind projects do not cause air pollution or oil spills, and they do not depend on an everlasting stream of imported oil and gas. Cape Wind is as good as any significant solution to our energy needs can possibly be.

A lack of seriousness about developing real solutions like Cape Wind will doom our children to a future enormously complicated by international conflict, climate change, terrorism, diminishing economic prospects and compromised freedom. Our lack of wisdom and vision will cause more brave Americans to die in future wars that could be prevented.

For too long, we have compromised our proud heritage with bad decisions. Our leaders need to face realities that ordinary people see clearly.  We cannot allow our regulatory process to be hijacked and violate the rule of law at the arbitrary whim of a few.

The NEPA process has been followed fully for Cape Wind – twice. The conclusions are absolutely clear.  It is long past time for public officials to act responsibly, put a stop to the cynical games and allow the project to get built.

Building Cape Wind will be a symbol of our commitment to the rule of law and our commitment to a peaceful and prosperous future.

Please make sure Secretary Salazar hears from you.



Filed under Climate Policy, Environmentalism, Fundamental Perspectives

3 responses to “Cape Wind, The Rule of Law And The Choices We Make

  1. peter kenney

    Mr. Unger –

    Your recent post urging approval of Cape Wind proves that you do not know or choose to ignore the facts of the Cape Wind case and its federal review. I have been actively involved in this mess since the first public presentation was made to Cape Cod residents in 2001, even before their first application to the Army Corps of Engineers.

    There are three underlying assumptions we should all be entitled to make:

    1. That Cape Wind has told us what equipment
    they will install (how many, how high, what
    capacity, etc.).

    2. That the review has followed the steps stated
    in law.

    3. That the entire review has been conducted in
    such a way as to respect existing legal uses of
    public domain and to the clear economic benefit
    of the public.

    It is a fact that the GE model 3.6s turbine has been discontinued since at least 2007 (information widely published in 2007 and since) and that MMS knew this at least two years ago (I telephoned Dr. Rodney cluck and personally informed him.). Both GE and Cape Wind have lied about this matter repeatedly and in print. At this time, no corrected turbine specification has been made available to MMS. Check out section 2.1.1 of the DEIS for the GE specification. You have read the entire DEIS, haven’t you? how about the FEIS?

    As for following the requirements of law, this is a joke, a bad joke. I am the person whose call to the Interior Department triggered an investigation by its Inspector General. This investigation lasted for more than six months. A report is expected soon. The Energy Policy Act to which you refer contained a clear instruction that MMS was to craft and put in place complete rules for the review of energy project applications on the Outer Continental Shelf within 270 days (nine months) of the law taking effect. George W. Bush signed this bill into law in August of 2005 while the rules were not completed for nearly three years late. Then Senator Ken Salazar voted for the law, now as Secretary of Interior one hopes he will find out what happened.

    The United States Coast Guard was ordered by the Bush White House to ignore radar data and pass on this project as were many other federal agencies, particularly U.S. Fish and Wildlife and MMS itself. We know this from what various officials have said during public meetings. I personally heard a Coast Guard Captain say this. The fix has been in since the very beginning, and it came from highest sources. (Full explanation at the end of this comment) One veteran of nearly thirty years service with Fish and Wildlife was relieved of all duties concerning wind projects in New York and New England because of his opposition to the corruption at MMS and Mass Audubon. His career was blown up and he was moved from his New Hampshire office to Hartford, Ct. where he sits waiting for his pension in a menial post. Is this the “Rule of Law” you support? Jim Gordon and others have to answer for a lot of evil doings.

    Now to economic benefit: shallow water offshore wind is simply too expensive. GE., Vestas and other have said this in print. National Grid recently signed a Power Purchase Agreement with an offshore wind developer to buy electricity from a Rhode Island wind farm for nearly double the state-wide average. Is this what we should expect from Cape Wind? By the way, according to Massachusetts law….since you rely on the Rule of Law, transmission companies are allowed to charge a mysterious 4% surcharge on green energy they deliver and raise their rate by 3.5% annually. I thought the wind was free.

    Thousands of ferry trips annually pass through Nantucket Sound and they routinely tack into the proposed turbine site during bad weather and heavy winds. This has been ignored. The nation’s best conch fishery will be disabled as fishermen will not be able to tow their mobile gear through steel forest. Everyone admits this but Gordon’s response when asked was , “….well, somebody has to make the sacrifice.” Gordon was quoted in the on-line (extended) version of a Boston Magazine interview this past July saying, “So we located this very shallow shoal in Nantucket Sound called Horseshoe Shoal that was away from the shipping lanes, away from ferry routes, out of the air flight paths. It was extremely shallow, so it’s an area that most boaters avoid.” All of what Gordon said in this quote is untrue, and he knows it. For example,
    the water depth in 85% of Horseshoe Shoal would allow passage of the deepest draft ferry operating the Hyannis-to-Nantucket route. That means a depth greater than fourteen feet. In fact, in places the Shoal is sixty feet deep. And, it is the heart of Nantucket Sound, one of the East Coast’s busiest recreational boating areas.

    The Cape Wind project, using the newest European offshore Wind farm, Horns Rev II as a template, could cost well over $2 billion. This means nearly $5 million per installed megawatt. 30% of this will come from U.S. taxpayers in the form of a tax free rebate and much more will be realized as profit to the developer through Byzantine tax maneuvers and forced public purchase of wind energy.

    There is so much more, Mr. Unger. You now have my e-mail. Feel free to contact me if you want more of the gruesome truth. Understand, I am a wind proponent, but only for cost effective projects in the proper locations.

    Lest I forget: Jim Gordon had a business partner in the 1990s with whom he developed a power plant in Veazie, Maine. He and this individual served until 2005 on the board of directors of a company that owned 15% of the Seabrook (New Hampshire) nuclear power plant). This individual has a brother who was a Boston Globe editorial writer and had been a senior staff member of both NBC and Fox News. Please do not expect me to believe that Jim Gordon failed to put these contacts to good use, especially since his former partner is a first cousin to George W. Bush, nephew to George H. W. Bush, a frequent overnight visitor to Kennebunkport as well as to the Bush White House and Camp David. Do not ask me to believe that this connection is not the reason Josh Bolten, James Lawrence Connaughton and other Bush Administration heavyweights personally bullied MMS and others into submission.

    George W. Bush has been heard to say that he has kept Cape Wind alive to aggravate Ted Kennedy. I have this fact on impeccable authority. So, Teddy is gone and so is George W. Bush (politically) but we are left with the tab for Cape Wind. If you truly knew how Cape Wind has been handled by federal regulators, I believe you would be just as strong as you are now in calling for application of the Rule of Law. But, your views would be the opposite of what they are now. Cape Wind is a bad precedent for Outer Continental Shelf energy projects and fro renewable energy generally.

    Finally, you are absolutely and harmfully wrong when you say that our two local tribes have come to this game only recently. They have both been deeply involved since their original written comments in early 2004…..and they have also both bee ignored by federal regulators, in spite of the requirements of law.

    Where are you getting what you call information?

    P. A. Kenney

  2. fredunger

    Mr. Kenney,

    If you read other postings on this blog, you will realize that I would be the last to suggest our government is perfect or anywhere close.

    But despite the imperfections in the system, we all put our liberty at risk if we allow the regulatory goal posts in permitting projects to continually move at the whim of project opponents. There has to be both a fair permitting process and a clear end to that process. I am merely advocating that we adhere to the rule of law.

    I realize that the tribes have participated in the process. What I don’t understand is that if they have anything at all new to add, that hasn’t already been fully considered in the NEPA process, why didn’t they present it earlier? If they don’t have anything new to add, why is the project being delayed to address these concerns for a third time?

    I suspect Mr. Gordon’s connections to the Bush White House couldn’t have been quite as good as you imply, or the project would have been approved five years ago after the first Federal Draft EIS clearly recommended project approval. However if, as you suggest, serious ethical improprieties have taken place, I trust they would be prosecuted in the criminal justice system. The most serious ethical improprieties I have personally seen publicized have been those of past staff members of the Cape Wind opposition group Alliance to Protect Nantucket Sound, who had to be relieved of their duties because of them.

    I do not have the time, nor am I qualified to address every issue in the permitting of this project in detail and I have not followed every detail of the long Cape Wind permitting process as carefully as you apparently have.

    However, knowing fairly well the intense scrutiny the project has had through state permitting reviews, as well as through two federal NEPA permitting processes, I do know that all the issues you have raised have been very thoroughly considered in the permitting process. Despite the very well organized and very well funded and very politically powerful opposition to this project, despite all the expert testimony in opposition, and though you may not agree with them, the Final Environmental Impact Statement is clear in its findings.

    If after all the careful scrutiny this project has received, Secretary Salazar were to overrule the findings of two Federal NEPA processes and the Final Environmental Impact Statement, I for one would be concerned for the liberty of all Americans.


    Fred Unger

  3. fredunger

    If anyone wishes to follow this conversation more, it is active over at, where I also blog.

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