An artist's rendering of what the turbines would look like in the ocean off Cape Wind.

Cape Wind Battle Continues as Foes File New Lawsuit

Gale Courey Toensing

But the project’s wind towers whirring above the shallow waters of Horseshoe Shoal would obliterate the Wampanoag tribes’ unimpeded view of the rising sun. This view is crucial to a ceremony that is central to their identity, and the development could destroy the ocean bed that was once the dry land where their ancestors lived and died.

Related: Aquinnah Wampanoag Sues Feds Over Cape Wind

The lawsuit says the state violated the dormant Commerce Clause of the U.S. Constitution by approving the NSTAR contract. The dormant Commerce Clause prohibits a state from engaging in actions that discriminate against out-of-state businesses and prevents states from engaging in protectionism in which an advantage is given to in-state industries at the expense of out-of-state competitors. The suit also alleges that the contract constitutes illegal regulation of wholesale electricity sales, in violation of the Federal Power Act and the Supremacy Clause of the U.S. Constitution.

In 2011 NSTAR tried to merge with Northeast Utilities, but state regulators refused to support the merger with the Connecticut power company until NSTAR contracted to buy the higher-priced Cape Wind power.

Related: Utilities Raise Constitutional Challenge to Forced Cape Wind Power Purchase

Merger May Force Purchase of Cape Wind Electricity

“The Commonwealth used the merger process to gain leverage over NSTAR. The Commonwealth’s Department of Energy Resources threatened to erect various regulatory roadblocks to the merger unless NSTAR executed a contract to buy electricity from Cape Wind,” the lawsuit alleges. “That State action was preempted by the Federal Power Act, which prohibits States from regulating the rates and terms of wholesale electricity sales. Plainly, Massachusetts could not directly order NSTAR to contract with Cape Wind at a State-ordered price. And the Federal Power Act and the Supremacy Clause would be meaningless if States could achieve through regulatory machinations what they are prohibited from doing directly.”


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