Court Rules That Corps Has Jurisdiction to Issue Permit for Cape Wind Tower

The Boston Herald reports here on federal district judge Tauro's ruling that the Corps of Engineers has jurisdiction under Section 10 of the Rivers and Harbors Act (as extended beyond three miles offshore by Section 4(f) of the OCS Lands Act, U.S.C. sec. 1333) to issue a permit for the Cape Wind tower. You can view the decision here at the LOCE Ocean Energy Resources Website (as far as we know, it's not otherwise available on the web). Tauro's ruling rejected the position taken by the Alliance to Save the Sound that the Corps' authority over the Outer Continental Shelf (OCS) was limited to issuing permits only for those structures that might be erected for exploration and harvesting of oil and other OCS resources. Instead, the court concluded that Congress' grant of authority to the Corps of Engineers over the OCS was broader and empowered the Corps to issue permits for any structure or artificial island located thereon, irrespective of its purpose. The court further noted that as a matter of practice, the Corps had used the full extent of its powers under the OCS in the past to regulate all sorts of structures on the OCS, ranging from artificial islands to a gambling casino. Finally, as a default position, the court concluded that to the extent that the statute contained some ambiguity, the Corps' interpretation of the scope of its jurisdiction was entitled to deference under the Chevron doctrine.

The second portion of the court's decision dealt with - or perhaps, did not deal with, the Alliance's argument that Cape Wind failed to satisfy the Corps' requirement that it obtain and hold an adequate property interest in the project site in order to obtain a Section 10 permit. The Alliance argued that the Corps lacked a property interest in the OCS, which are public trust lands, and thus, could not qualify for a permit under the Corps' own regulations. The court found that the "property interest" requirement was not a condition precedent, so to speak, of obtaining a permit, the absence of which would preclude its issuance. Instead, the court accepted the Corps' interpretationof its regulations - i.e., that it could issue a permit after which the applicant would continue to bear responsibility for attaining adequate property interests to construct the project.

So while the decision is undeniably a huge victory for Cape Wind, ultimately, it seems to me that at some point, the "property interest" issue needs to be resolved. The Corps permit does not confer a property interest on Cape Wind, so what's to stop another developer from putting up a competing use right along side the Cape Wind project? If I were a developer or investor, I'd want to see this issue resolved sooner rather than later.