On Friday, Judge Richard Stearns dismissed the latest challenge to Cape Wind, ruling that claims that the Massachusetts DPU coerced NSTAR into purchasing power from Cape Wind, and that such coercion violated the dormant commerce clause, must be dismissed. To Judge Stearns, dismissal was required by a straightforward application of Eleventh Amendment jurisprudence. It is clear that he thought the plaintiffs’ claims borderline frivolous – or perhaps not even borderline.
What is most interesting about the opinion is not the explanation as to why the complaint was dismissed, but the introduction and the conclusion. Judge Stearns began his opinion with a recitation of the many legal challenges brought against Cape Wind by its opponents. Describing the opponents as “an obdurate band of aggrieved residents of Cape Cod and the Islands,” Judge Stearns noted that the plaintiffs have previously “claim[ed] the mantle of environmentalism”, but for this case “have doffed their green garb and draped themselves in the banner of free-market economics.”
After making his Eleventh Amendment ruling, Judge Stearns also rejected plaintiffs’ merits claims in three crisp footnotes.
The really kicker, however, comes in the final footnote. After offering the traditional judicial caution that his opinion should not be read as a view on the merits of the Cape Wind project overall, Judge Stearns gave his candid assessment of the plaintiffs’ relentless opposition to Cape Wind:
In this case, the Governor, the Legislature, the relevant public agencies, and numerous courts have reviewed and approved the project and the PPA with NSTAR and have done so according to and within the confines of the law. There comes a point at which the right to litigate can become a vexatious abuse of the democratic process.
Do I expect the opponents to apologize and go home with their collective tail between their collective legs? No. Do I think that Judge Stearns is trying to make it easier for the next judge to give the next challenge appropriately short shrift? Yes. Will it work? Time will tell. However, I’ve always thought that Cape Wind would somehow make it to the finish line and it’s certainly looking more likely today.