Huffington Magazine Issue 39 | Page 48

SINKING IN BUREAUCRACY line the environmental review process — which for the Nantucket project involved numerous agencies often working independently, on their own timelines, including the Environmental Protection Agency, the U.S. Fish & Wildlife Service, the Coast Guard, the Army Corps of Engineers, the National Marine Fisheries Service and myriad others at both the state and federal levels. “Part of the problem with NEPA is, when it started, it would be unusual for an environmental impact statement to exceed 100 pages,” Duffy said. “It’s just expanded gradually over time. The standards are not — there’s no blackand-white line as to how much work has to be done under NEPA. It’s very subjective and case specific, site specific.” The final EIS for the Cape Wind project is 800 pages long. The process is also wide open to litigious opponents who, Duffy says, are free to bring court challenges to decisions made by regulators at nearly every level of the process. “I think they made a decision that they thought if they stretch the NEPA process out and made it as costly and long as possible, that we financially would HUFFINGTON 03.10.13 “YOU CAN’T JUST HAVE SOMEONE PLUNK SOMETHING DOWN WHEREVER THE HELL THEY WANT.” collapse and go away,” Duffy said of Cape Wind’s opponents. “But we didn’t go away. Now, the NEPA process was painful to go through, but we now have the favorable position of defending the adequacy of an EIS which is one of the most complete and extensive anyone has ever seen.” Even so, few would argue that 12 years and counting is an efficient or economical time frame to get a project off the ground. A recent analysis by the Atlanta-based international law firm King & Spalding noted that an average of 126 new NEPA challenges were filed each year between 2001 and 2009: “Furthermore, an average of 24 Temporary Restraining Orders (TRO) and preliminary and permanent injunctions halting projects were issued each year between 2001 and 2009. In general, NEPA plaintiffs succeed in winning NEPA cases more often than pro-development interests. And NEPA plaintiffs have six years after a ‘final agency action’ to