Gale Courey Toensing
Cape Wind Associates, which has been trying for more than a decade to build a massive $2.6 billion wind energy project in public waters off the coast of Cape Cod, has a new challenge: The renowned constitutional law professor Laurence H. Tribe, who mentored President Barack Obama when he was a Harvard law student, has joined Cape Wind’s opposition.
The Cape Wind project proposes erecting 130 turbines, each towering 440 feet above the water across a 25-square mile area between Cape Cod, Martha’s Vineyard and Nantucket. Since it was first proposed in 2001, the project has faced fierce opposition from the Alliance to Protect Nantucket Sound, the umbrella group for dozens of Cape Wind opponents, including the Mashpee Wampanoag Tribe on Cape Cod and the Aquinnah Wampanoag Tribe on Martha’s Vineyard. But it’s been touted by the Obama administration as America’s first offshore wind farm, ironically placing Tribe in the position of representing the opponents of a major project that his former student – the president – supports.
Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, has taught at its Law School since 1968 and was voted the best professor by the graduating class of 2000, according to his university web page. He argued the first of the two Bush v. Gore Supreme Court cases for former Vice President Al Gore in the disputed 2000 presidential election and has argued dozens of major Supreme Court cases. He’s the author of more than 100 articles and books, the recipient of eleven honorary degrees and taught two of the sitting Supreme Court justices – Chief Justice John Roberts and Justice Elena Kagan.
In 1988-1989 when President Barack Obama was a first year law student at Harvard, Tribe took him on as a research assistant, a position the future president held for two-an-a-half years, The Fiscal Times reported.
“He was amazing,” Tribe told The Fiscal Times in a YouTube interview. “This kid comes in wearing jeans and a sweatshirt – lanky kid, strange name – but I was quite amazed by him and we talked for a long time, even though he hadn’t taken constitutional law yet, let alone take it from me.” Obama asked the law professor for some research assignments and was given “some very challenging stuff,” Tribe said. “In all of my years of teaching, I don’t think I’ve ever been that impressed with a first year law student.”
More recently, Tribe served as the first Senior Advisor for Access to Justice for Attorney General Holder in the Obama Administration.
On November 6, Tribe and a team of lawyers filed a brief in the 1st Circuit Court of Appeals in Boston arguing on behalf of the Alliance, the Town of Barnstable, Massachusetts, and a group of local businesses and residents that Massachusetts state agencies and officials have committed “an ongoing violation of federal law” by strong-arming energy company NStar to buy power from Cape Wind. The appeal challenges a district court’s dismissal of a lawsuit filed earlier this year and brings new constitutional arguments to the opponents’ previous concerns over the environment, public safety and cultural preservation – particularly of the Wampanoags’ ceremonial need for an unobstructed view of the sunrise.
In 2011 NSTAR tried to merge with Northeast Utilities, but state regulators refused to support the merger with the Connecticut power company until NSTAR contracted to buy the higher-priced Cape Wind power. “The Settlement Agreement between NSTAR, the Department of Energy Resources and Cape Wind makes it crystal clear that the only reason NSTAR agreed to buy Cape Wind power was to secure the Department’s support for the NSTAR-Northeast Utilities merger,” the brief says. “If that merger fell through, then NSTAR was relieved of its obligation to purchase electricity from Cape Wind.”
The brief argues that the federal violation will continue as long as state approval of the 15-year Cape Wind contract (also called the ‘Power Purchase Agreement’ or PPA) remains in place, because “NSTAR will be purchasing wholesale power under a contract brought about by state coercion rather than a voluntary market transaction, and cheaper, out-of-state renewable energy sources will be locked out of the Massachusetts market.” Blocking out-of-state sources violates the “Dormant” Commerce Clause– a legal doctrine that prohibits a state from passing legislation that improperly burdens or discriminates against interstate commerce. The plaintiffs are asking the state to nullify the contract.
If the project receives funding and final approvals, Cape Wind power will be among the most expensive in the nation and at least three times the cost of competing out-of-state green energy providers. According to NSTAR’s own estimates, Cape Wind would raise electricity bills for NSTAR customers by nearly $1 billion over the life of the contract.
“From an economic perspective, the State has imposed a direct surcharge on ratepayers’ power rates attributable to illegal discrimination” because NSTAR will collect every cent from its customers that it pays to Cape Wind, the brief says.
Audra Parker, president and CEO of the Alliance, said the opponents continue to believe in their cause. “We have a very strong case that shows NSTAR was coerced into buying Cape Wind power in a way that violates federal law, discriminates against affordable green power producers, and burdens small businesses and municipalities with unnecessarily high electricity costs,” Parker said. “It’s time that the state acknowledges and takes responsibility for this backroom deal that would place a tremendous cost burden on consumers and businesses throughout the Commonwealth.”
Cape Wind spokesman Mark Rodgers said the project is in the “late financing state” and has commitments of about $1.5 billion. “We’re not commenting on the amount we have left to raise,” he said. “The capital cost of the project we regard as proprietary but the most common estimate I see in the press is $2.6 billion.”
Asked how much money Cape Wind Associates has spent over the last 13 years in trying to develop the project, Rodgers said, “Many tens of millions of dollars.”
Rodgers said the developer is not concerned by the constitutional arguments that Tribe and the Alliance have brought to the legal battle over Cape Wind. “They raise a lot of novel arguments and they employ a lot of lawyers but their legal track record is abysmally poor,” he said, claiming that the Alliance has lost 26 legal decisions. “We’re confident that the district court decision [dismissing the opponents’ lawsuit] will be upheld in the appeal. There’s a start of construction deadline in our Power Purchase Agreement by the end of next year and we’re going to meet that deadline.”