Tuerck: New storm builds for Cape Wind

From today's Boston Herald:

Now being litigated in federal court is a case that threatens to wipe out, with a stroke of the pen, $2.5 billion in investments in what is intended to become the Cape Wind power project. For more than 10 years, Cape Wind has been trying to build 130 wind turbines in Nantucket Sound against intense opposition from local homeowners and businesses.

Until recently, the legal strategy adopted by opponents was focused on environmental, safety and cultural concerns over the project. But early this year, opponents took a different tack, raising a constitutional issue that could reach the U.S. Supreme Court. In Town of Barnstable v. Ann G. Berwick, the plaintiffs argued that the state violated the “Dormant” Commerce Clause and the Supremacy Clause of the U.S. Constitution in its efforts to secure private financing for Cape Wind.

Under the Dormant Commerce Clause, state governments may not favor in-state, over out-of-state, providers of some good or service being marketed to residents. According to the Cape Wind opponents who brought the case, the state violated this doctrine when it threatened to block a merger requested by Nstar, which had balked at buying power from Cape Wind at rates far higher than it would have had to pay out-of-state providers. The implicit message from the state to Nstar was: “Buy the prescribed amount of power from Cape Wind at whatever rates it demands or forget about the merger. 

Read more at the Herald.  

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