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