News & Insights  |  Newsletters

Federal Court Rejects FAA's Approval of Wind Farm

Winter 2011

Last year, the Federal Aviation Administration (FAA) issued 130 "no-hazard" determinations in connection with an offshore wind farm proposed to be constructed on Nantucket Sound. However, on October 28, 2011, the U.S. Court of Appeals for the D.C. Circuit found that the FAA failed to follow its own guidelines in reaching its determinations, and sent the matter back to the FAA for reconsideration.

This case arose out of a proposal by Cape Wind Associates to build 130 wind turbines, each 440 feet tall, in a 25-square-mile area of Nantucket Sound. The proposed wind farm would occupy an area roughly the size of Manhattan Island. After conducting an aeronautical study, the FAA issued 130 identical Determinations of No Hazard in which it concluded that the 130 turbines "would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities." The FAA found that the project was not a hazard to air navigation (being under 500 feet in height), but conditioned its decision upon Cape Wind implementing a number of measures to mitigate the turbines' adverse impact on nearby radar facilities.

The FAA's determinations were challenged in court petitions filed by the Town of Barnstable, Massachusetts (Barnstable), and the Alliance to Protect Nantucket Sound (the Alliance). The court found that Barnstable and the Alliance had standing to challenge the no-hazard determinations despite the FAA's argument that the determinations, by themselves, have "no enforceable legal effect." Noting the FAA's "curious display of agency modesty," the court found that the Department of the Interior repeatedly assigned to the FAA a significant role in the process of deciding whether to permit the wind farm's construction and found it "likely, as opposed to merely speculative," that Interior would rethink the project if the FAA were to determine that the turbines posed an immitigable hazard to aviation.

On the merits, the court concluded that the FAA improperly applied its own procedures, found in the Procedures for Handling Airspace Matters, FAA Order 7400.2G (the handbook). In making its no-hazard determinations, the FAA relied solely upon handbook § 6-3-8(c)(1), which states that a structure would have an adverse effect upon aviation if its height is greater than 500 feet above the surface and it is within two miles of any regularly used VFR route. Acknowledging that VFR routes would be affected, the FAA "leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold."

The court rejected the FAA's leap of logic, noting that under any "reasonable" reading of the handbook, § 6-3-8(c)(1) identifies only one circumstance in which a hazard to air navigation may be found, and the absence of that one circumstance could not alone justify a finding of "no hazard." Other provisions in the FAA handbook state that a structure is considered to have an adverse effect on aviation if it interferes with air navigation facilities or requires a VFR operation to change its regular flight course or altitude. The court cited substantial evidence in the record of potential impacts on air navigation facilities and VFR operations, but noted that the FAA "cut the process short in reliance on a misreading of its handbook and thus, as far as we can tell, never calculated the risks in the first place."

The court concluded that "by abandoning its own established procedure . . . the FAA catapulted over the real issues and the analytical work required by its handbook." The court therefore vacated the FAA's determinations and remanded the matter to the FAA to engage in a "reasoned decision-making."

Wiley Rein acted as special aviation counsel to the Alliance.