* Vice President for Sustainable Development & Renewable Energy, Massachusetts Technology Collaborative (MTC).
** Principal, Good Harbor Consulting.
1 Airtricity of Ireland is currently constructing the first 25-megawatt (MW) phase of an offshore wind farm on Arklow Banks, which will have an installed capacity of 520 MW if completed as planned. Airtricity, Arklow Bank Wind Park 1 (2003), http://www. airtricity.net/download/1/Arklow%20infosheet.pdf (last visited Feb. 11, 2004).
2 European Wind Energy Ass’n & Greenpeace, Wind Force 12, at 3 (2003) (citing G8 Renewable Energy Task Force, Final Report (2001), available at http://www.renewabletaskforce.org/pdf/G8_report.pdf) [hereinafter Wind Force 12].
3 Id. at 12.
4 In 1992 the Energy Policy Act was signed into law and included enactment of a Production Tax Credit (PTC) under � 45 of the Internal Revenue Code. Energy Policy Act of 1992, Pub. L. No. 102-486, � 1916, 106 Stat. 2776, 3024 (codified as amended at I.R.C. � 45 (2000)). This credit was available to corporate entities building new renewable energy production facilities such as solar, biomass, wood chip, geothermal, and wind electric power production plants. I.R.C. � 45; see John A. Herrick, Federal Project Financing Incentives for Green Industries: Renewable Energy and Beyond, 43 Nat. Resources J. 77, 101–07 (2003). The tax credit at inception of the law was $0.015 per kilowatt hour (kWh) produced by the facility, increased each year by the official rate of inflation from the previous year, for the first ten years of operation of the equipment. The current PTC rate is approximately $0.019 per kWh. The credit is available to new renewable energy facilities placed into commercial service after enactment of the law, and prior to the latest deadline, December 31, 2003. In early 2002, this PTC qualification date was extended by Congress for two years, grandfathered back to January 1, 2002. I.R.C. � 45; see also 10 C.F.R. � 451 (2003) (defining the program’s qualifications for participants); 18 C.F.R. � 292.304 (setting rates).
5 See Herrick, supra note 4, at 101–07.
6 Worldwatch Inst., The Choice: An Energy Strategy for the 21st Century (2001), at http://worldwatch.org/press/news/2001/05/17/htm (last visited Jan. 19, 2004).
7 See Mass. Gen. Laws ch. 25A, � 11F (2003); Renewable Energy Portfolio Standard, Mass. Regs. Code tit. 225, �� 14.00–.12 (2003).
8 See Mass. Gen. Laws ch. 164, �� 1A–1F.
9 Mass. Regs. Code tit. 225, � 14.00.
10 Mass. Gen. Laws ch. 40J, � 4E.
11 Mass. Regs. Code tit. 225, � 14.07(1).
12 Id.
13 See id.
14 Mass. Gen. Laws ch. 40J, � 4E.
15 The average residential ratepayer pays about fifty cents a month, or six dollars a year.
16 Mass. Gen. Laws ch. 164, � 20(a)(1).
17 Id.
18 For a description of the MTC’s mission, see Mass. Tech. Collaborative, What We Do, at http://www.masstech.org/AgencyOverview/whatwedo.htm (last visited Jan. 19, 2004).
19 See Mass. Gen. Laws ch. 25A, � 11F; Mass. Regs. Code tit. 225, �� 14.00–.12 (2003).
20 See Wind Force 12, supra note 2, at 5.
21 See Steven Ferrey, Generation Technologies and Fuels for Electric Plus Thermal Energy, in 1 Law of Independent Power � 2:11 (2003) (“In New England for example, more than 100 percent of the current electric demand could be supplied by wind energy resources.”). Cape Wind’s website also offers support for this claim. See Cape Wind Assocs., Project Overview: Project at a Glance, at http://www.capewind.org/index.htm (last visited Feb. 6, 2004).
22 The size of the wind farm has been reduced from 170 to 130. David Arnold, Size of Wind Farm Plan Reduced, Boston Globe, Jan. 22, 2003, at B3.
23 Raab Assocs. et al., Facilitator’s Report: The Cape & Islands Offshore Wind Stakeholder Process, An MTC Public Outreach Initiative 3–4 (2003), available at http://wind.raabassociates.org/articles/facilitators_report.doc (last visited Feb. 6, 2004) [hereinafter Facilitator’s Report].
24 John Learning, Sound Only N.E. Choice, Expert Says, Cape Cod Times, Dec. 13, 2002, at A3.
25 U.S. Army Corps of Eng’rs, Environmental Impact Statement Scope of Work, Wind Power Facility Proposed by Cape Wind Associates, LLC (2002), available at http://www.cleanenergystates.org/JointProjects/offshore%20docs/Cape_Wind_EIS_Scope.pdf (last visited Feb. 12, 2004) [hereinafter Scope of Work EIS]. For a map of the proposed wind farm, see Cape Wind Assocs., Project Overview: Project Siting and Visual Simulations, at http://www.capewind.org (last visited Feb. 6, 2004).
26 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 78 (D. Mass. 2003).
27 Outer Continental Shelf Lands Act of 1953, 43 U.S.C. �� 1331–1356 (2000).
28 Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 74.
29 Stephanie Ebbert, On Wind, Some Blow Hot and Cold, Boston Globe, June 17, 2003, at A1.
30 Rivers and Harbors Appropriation Act of 1899 � 10, 33 U.S.C. � 403 (2000). This jurisdiction is based on Regulatory Guidance Letter 88-08, issued in 1988 for the purpose of exerting Corps’s authority over what was at the time a new class of projects being proposed on the Outer Continental Shelf (OCS): artificial islands, structures supporting gambling casinos, and other similar installations. U.S. Army Corps of Eng’rs, Regulatory Guidance Letter 88-08, Regulation of Artificial Islands, Installations and Structures on the U.S. Outer Continental Shelf (1998), available at http://www.spk.usace.army. mil/cespk-co/regulatory/RGLs/88-08.html (last visited Jan. 19, 2004). This guidance letter interprets the legislative history of the Outer Continental Shelf Lands Act (OCSLA) as reflecting Congress’s intention that the Corps regulates, through the Rivers and Harbors Act, all such structures, regardless of the purpose they serve. Id.
31 See Brief of Amicus Curiae Conservation Law Foundation, at 6–10, Alliance to Protect Nantucket Sound (No. 02-11749-JLT).
32 See Coastal Zone Management Act, 16 U.S.C. � 1456(c)(3)(A) (2000).
33 Scope of Work EIS, supra note 25.
34 See Ebbert, supra note 29, at A1.
35 See Facilitator’s Report, supra note 23, at 3.
36 See Ebbert, supra note 29, at A1.
37 See id.; see also Alliance to Protect Nantucket Sound, Inc., About/Contact Us, at http://www.saveoursound.org/contactus.html (last visited Feb. 6, 2004).
38 See Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 64 (D. Mass. 2003).
39 See Stephanie Ebbert, Kennedy Retreats on Wind Farm Amendment, Boston Globe, July 31, 2003, at B1.
40 The Alliance lists its supporters on its website. See Alliance to Protect Nantucket Sound, Inc., Who’s Concerned, at http://www.saveoursound.org/allies.html (last visited Feb. 6, 2004).
41 Cape Wind lists its supporters on its website. See Cape Wind Assocs., Our Supporters: Project Supporters, at http://www.capewind.org/index.php (last visited Jan. 25, 2003).
42 Id.
43 Cape Wind Assocs., Project at a Glance, at http://www.capewind.org/index.php (last visited Jan. 25, 2004).
44 See Brief of Amicus Curiae Conservation Law Foundation at 1, Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 02-11749-JLT).
45 See Cynthia Roy, Unions, Fishermen Back Wind Farm for Nantucket Sound, Boston Globe, Apr. 25, 2003, at B3.
46 See Ebbert, supra note 29, at A1.
47 See Alliance to Protect Nantucket Sound, Inc., Frequently Asked Questions, at http://www.saveoursound.org/faq.html (last visited Feb. 6, 2004); Cape Wind Assocs., Frequently Asked Questions About the Cape Wind Project, at http://www.capewind. org/index.php (last visited Feb. 6, 2004).
48 See U.S. Army Corps of Eng’rs, Public Scoping Session: Wind Farm Proposal Environmental Impact Statement 6–15 (2002), available at http://www.nae.usace.army. mil/projects/ma/ccwf/0306WIND.pdf (last visited Jan. 23, 2004).
49 Glenn Ritt, The Windmill War: Point-Counterpoint, Cape Codder, Sept. 6, 2002, at 48.
50 Ebbert, supra note 29, at A1 (“[B]oth the opponents and proponents are trying to capture public opinion by flooding TV and radio airwaves . . . . The Alliance estimates it has already spent $100,000 on ads. Cape Wind places its media buys at about $200,000 . . . . Both sides have paid more money to hard-driving public relations firms and lobbyists.”).
51 See James Bone, Wind Farm Threatens Kennedys’ Playground, Times (London), July 5, 2003, at 15; Ebbert, supra note 29, at A1; Scott Kirsner, Wind Power’s New Current, N.Y. Times, Aug. 28, 2003, at G1.
52 See, e.g., Editorial, Ill Winds Over Photos, Cape Cod Times, Oct. 25, 2003.
53 Mark Jurkowitz, Ill Wind Over Cape Cod Times, Boston Globe, Sept. 3, 2003, at D1.
54 Renewable Energy Trust, Mass. Tech. Collaborative, Appendices: Renewable Energy Options for the Cape & Islands, in Cape & Islands Offshore Wind Stakeholder Process Final Report (CD-ROM, 2003) (on file with author), available at http://www.masstech.org/offshore/index.htm [hereinafter Final Report].
55 Doreen Leggett, What the Danes Can Teach Us About Wind Power, Cape Codder, Mar. 7, 2003.
56 See, e.g., Cape Wind Assocs., Project Overview: Project at a Glance, at http:// www.capewind.org/index.php (“The project will be capable of replacing up to 113 million gallons of oil per year.”).
57 Memoranda from Greg Watson, Vice President, MTC, to MTC staff (Dec. 2001–May 2002) (on file with author).
58 John Leaning, Sifting Through Wind Farm Hyperbole, Cape Cod Times, Sept. 29, 2002, at 1.
59 Doreen Leggett, Winds of Change: The Massachusetts Technology Collaborative Hopes to Make Sense of a Battle Over Cape Cod Wind Farm, Cape Codder, Sept. 13, 2002, at 1.
60 See discussion infra Part II.E.
61 See discussion infra Part II.E.
62 See Mass. Tech. Collaborative, at http://www.masstech.org (last visited Feb. 6, 2004).
63 For a complete list of the participants, see Facilitator’s Report, supra note 23, at 26.
64 John Leaning, Agency’s Goal: Informed Debate of Wind Farm, Cape Cod Times, July 11, 2002, at A6 (“Isaac, a spokesman for the anti-wind farm group Alliance to Protect Nantucket Sound, said while there is room to question the neutrality of Watson’s group ‘We appreciate anyone who wants to come in and discuss these issues further.’”).
65 42 U.S.C. � 4332 (2000); see Scope of Work EIS, supra note 25.
66 See, e.g., 42 U.S.C. � 4332(c) (requiring that reports include “alternatives to the proposed action”).
67 Interviews by Greg Watson, Vice President, MTC, with Jim Gordon, President, Cape Wind Associates (n.d.).
68 Interview by Greg Watson, Vice President, MTC, with Christine Godfrey, Chief, Regulatory Division, U.S. Army Corps of Engineers (n.d.).
69 See Facilitator’s Report, supra note 23, at 4, 8.
70 See id. at 31–32.
71 Id. at 11, 26.
72 Id. at 27–28.
73 See id. at 5 (“The goals were specifically articulated as educational and information sharing.”).
74 Id. at 24–26.
75 Raab Associates, with Greg Sobel and Suzanne Orenstein.
76 For summaries of all meetings, see Final Report, supra note 54.
77 Facilitator’s Report, supra note 23, at 5 (“[The stakeholder process] was not designed to be a formal consensus-seeking or settlement process to determine whether stakeholders could reach agreement on whether or not the project should go forward, and under what conditions.”).
78 Id.
79 U.S. Army Corps of Eng’rs, Cape Wind Farm Project Fact Sheet (2002), http:// www.masstech.org/offshore/Appendices/ACOEFactSheets/farmfact.pdf (last visited Feb. 6, 2004).
80 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 66–67 (D. Mass. 2003).
81 Id.
82 Facilitator’s Report, supra note 23, at 3.
83 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 73–74.
84 See supra text accompanying notes 7–14.
85 See Renewable Energy Trust, Mass. Tech. Collaborative, Stakeholder Group: Draft Purpose, Charge, and Groundrules, in Final Report, supra note 54, � 4, available at http:// www.masstech.org/offshore/Meeting1/groundrulesfinal1010.htm (last visited Feb. 6, 2004) [hereinafter Groundrules].
86 See id. (“Stakeholder Group members can participate in all discussions and deliberations.”).
87 See id. � 12 (listing regulatory agencies as “Resources/Advisors” rather than “Stakeholder Groups”). For each of the meetings, the facilitators sat at the head of the room. The stakeholders sat at tables facing the facilitators and the resources and advisors sat at tables behind the stakeholders. The media and other observers were behind the resources and advisors in the back of the room.
88 See Final Report, supra note 54, at index page.
89 See, e.g., Renewable Energy Trust, Mass. Tech. Collaborative, Meeting #6 Summary, in Final Report, supra note 54, at III (cataloging an extensive dialogue between the stakeholders), available at http://www.masstech.org/offshore/capemtgsumm312final.htm (last visited Jan. 19, 2004) [hereinafter Meeting #6 Summary].
90 As of this writing, the EIS has not been published. The softening of the deadline permitted the stakeholder process to run beyond February at the request of the group.
91 See Meeting #6 Summary, supra note 89.
92 Renewable Energy Trust, Mass. Tech. Collaborative, First Meeting Agenda, in Final Report, supra note 54, available at http://www.masstech.org/offshore/Meeting1/ Agenda101002rev6.htm (last visited Jan. 25, 2004).
93 See Renewable Energy Trust, Mass. Tech. Collaborative, Meeting #1 Summary, in Final Report, supra note 54 (“One attendee requested that all experts brought in have no stated position on the Cape Wind project, but others suggested that as long as balanced perspectives were presented a stated position one way or the other should not invalidate the contributions of a presenter.”), available at http://www.masstech.org/offshore/Meeting1/MeetingSummaryrev4.htm (last visited Feb. 6, 2004) [hereinafter Meeting #1 Summary].
94 See id. at I.
95 See generally Final Report, supra note 54, at index page (listing all meeting agendas and summaries).
96 Id. The Final Report on CD-ROM is essentially the final version of the website. See id.
97 See id.
98 See id.
99 See Final Report, supra note 54, at index page. Presenters included representatives from the Army Corps of Engineers, the Audubon Society, private-sector consultants, academics in energy fields, endangered species advocates, state and national regulators, and utilities. Id.
100 See id.
101 See Groundrules, supra note 85, �� 8, 19.
102 See Renewable Energy Trust, Mass. Tech. Collaborative, Meeting #2 Summary, in Final Report, supra note 54, at IV, available at http://www.masstech.org/offshore/ Meeting2/Summary103102rev2.htm (last visited Jan. 25, 2004) [hereinafter Meeting #2 Summary].
103 See Renewable Energy Trust, Mass. Tech. Collaborative, Wind Resource Maps, in Final Report, supra note 54, available at http://www.masstech.org/offshore/WINDRE-SOURCEMAPSrev.htm (last visited Jan. 25, 2004).
104 Id. The MTC partnered with Connecticut Clean Energy Fund and Northeast Utilities Systems and contracted with AWS Scientific to create this database of information. Id. The Southern New England wind resources map, completed in early 2002, analyzed surface and upper-air geophysical databases using a powerful mesoscale atmospheric modeling system called MesoMap to produce detailed maps of the wind resource at different heights across the region. Id.
105 Id.
106 Div. of Conservation Sci. & Ecological Mgmt., Mass. Audubon Soc’y, Survey of Tern Activity Within Nantucket Sound, Massachusetts, During Pre-Migratory Fall Staging (2003), available at http://www.masstech.org/offshore/audubonfinal.pdf (last visited Feb. 6, 2004).
107 Facilitator’s Report, supra note 23, at 15–16. On a scale of 1 to 10, the stakeholders ranked Information About Offshore Wind Generally at an average of 7.8, with a low score of 5 and a high score of 10; Information About the Cape Wind Project Specifically at an average of 7.3, with a low score of 3 and a high score of 10; Understanding the Regulatory Process for Permitting at an average of 7.5, with a low score of 4 and a high score of 10; Perspectives of the Stakeholders at an average of 7.8, with a low score of 5 and a high score of 10; Value of the Presentations at an average of 7.9, with a low score of 5 and a high score of 10; Facilitation at an average of 8.3, with a low score of 4 and a high score of 10; and an Overall Value of the Process at an average of 7.9, with a low score of 3 and a high score of 10. Id.
108 Id. at 16–17.
109 Id. at 16.
110 Id.
111 Id. at 13.
112 Id. at 14, 17.
113 Facilitator’s Report, supra note 23, at 14, 18.
114 See id.
115 See, e.g., Renewable Energy Trust, Mass. Tech. Collaborative, Meeting #3 Summary, in Final Report, supra note 54, at IV (discussing technological and environmental constraints on siting), available at http://www.masstech.org/offshore/Summary112103 rev3.htm (last visited Jan. 25, 2004) [hereinafter Meeting #3 Summary].
116 See Renewable Energy Trust, Mass. Tech. Collaborative, Meeting #4 Summary, in Final Report, supra note 54, at III, available at http://www.masstech.org/offshore/ Summary121202rev3.htm (last visited Jan. 25, 2004) [hereinafter Meeting #4 Summary].
117 See Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law, and Society 52 (2nd ed. 1998).
118 See Meeting #3 Summary, supra note 115, at IV.
119 See Meeting #4 Summary, supra note 116, at III.
120 A.R. Henderson et al., Offshore Wind Energy Network, Offshore Wind Energy in Europe 1 (2001), http://www.owen.eru.rl.ac.uk/documents/BWEA23/BWEA23_Henderson_Concerted_Actioni_paper.pdf (last visited Feb. 6, 2004).
121 This was the premise behind the MTC’s Stakeholder Process, which was designed with goals including better stakeholder understanding of the project and its impacts. See Facilitator’s Report, supra note 23, at 5–6.
122 See generally Scott Ridley, Profile in Power: A History of the People and Events That Have Shaped and Continue to Shape America’s Critical Industry (American Public Power Association 1996).
123 See Meeting #2 Summary, supra note 102, at III; Meeting #3 Summary, supra note 115, at IV.
124 See Final Report, supra note 54, at index page.
125 The permitting process for offshore oil and gas drilling was established fifty years ago. See Outer Continental Shelf Lands Act of 1953, 43 U.S.C. � 1340(b) (2000).
126 See Meeting #4 Summary, supra note 116, at 1 (presentation of John A. Duff and presentation of Guy R. Martin).
127 See 43 U.S.C. �� 1331–1356.
128 See Meeting #1 Summary, supra note 93, at IV.
129 See A Bill to Amend the Outer Continental Shelf Lands Act, H.R. 793, 108th Cong. (2003); A Bill to Promote the Sensible Development of Renewable Energy in the Waters of the Coastal Zone, H.R. 1183, 108th Cong. (2003).
130 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Department of the Army, 288 F. Supp. 2d 64, 80–81 (D. Mass. 2003) for an example from the legal front, and Ebbert, supra note 29, at A1, for an example from the public relations front.