## Facts

- Cape Wind proposed an offshore wind farm in federal waters in Nantucket Sound and required two 115-kV underground/undersea transmission cables to connect to the regional grid.
- The transmission route ran through state waters and state-owned tidelands and made landfall on Cape Cod.
- Under G.L. c. 164, the Energy Facilities Siting Board (EFSB) must approve major transmission facilities; its mandate is reliable energy supply with minimum environmental impact at the lowest cost.
- In 2005, EFSB granted conditional approval under G.L. c. 164, § 69J for the transmission project, contingent on obtaining required permits.
- The Cape Cod Commission later denied the project’s development of regional impact (DRI) application.
- Cape Wind sought a “certificate of environmental impact and public interest” under G.L. c. 164, § 69K to supersede the denial and consolidate state and local approvals for the transmission lines.
- EFSB conducted adjudicatory proceedings with hearings and party participation by the Alliance, the Commission, the Town of Barnstable, and others, then issued the § 69K certificate.
- The Commission, Barnstable, and the Alliance petitioned for judicial review under G.L. c. 25, § 5 and G.L. c. 164, § 69P; the consolidated cases were reported to the full Supreme Judicial Court.

## Issues

1. Whether EFSB had statutory authority under G.L. c. 164, § 69K to issue a certificate that superseded the Cape Cod Commission’s DRI denial and functioned in place of multiple state and local approvals for the transmission project.
2. Whether the § 69K certificate unlawfully displaced regional or municipal authority, including asserted home rule limits and the Commission’s enabling statute.
3. Whether EFSB applied the correct § 69K standards and made adequate, evidence-supported findings on environmental impacts, alternatives, and consistency with applicable standards.
4. What level of judicial deference applied to EFSB’s technical and fact findings in the certificate proceeding.

## Decision

- The Supreme Judicial Court affirmed EFSB’s issuance of the § 69K certificate for the Cape Wind transmission project.
- The court held that § 69K authorizes EFSB, in defined circumstances, to issue a single certificate with the legal effect of necessary state and local permits and approvals, even where local or regional bodies have denied approval.
- The court rejected claims that the certificate unlawfully infringed municipal home rule or improperly displaced the Cape Cod Commission’s authority.
- The court concluded that EFSB conducted extensive proceedings, considered alternatives and environmental impacts, and supported its determinations with substantial evidence.

## Legal Principles

- G.L. c. 164, § 69K authorizes EFSB to issue a “certificate of environmental impact and public interest” that can stand in place of, and prevail over inconsistent, state and local permitting outcomes for an EFSB-approved energy facility, subject to statutory criteria.
- The Legislature may preempt local and regional land-use decisions by general law in matters of statewide concern; energy facility siting and electric system reliability qualify as statewide concerns.
- Regional and municipal bodies retain participatory rights in EFSB proceedings, but their permitting determinations may be overridden when the statutory conditions for a § 69K certificate are satisfied.
- On judicial review, EFSB’s fact finding and technical judgments are upheld when supported by substantial evidence and when the agency applies the correct legal standards within its delegated authority.
- Public-trust and tidelands considerations may be addressed through the permitting standards incorporated into the § 69K analysis, without requiring EFSB to assume the distinct roles of other permitting authorities.

## Conclusion

The court upheld EFSB’s use of § 69K to consolidate and substitute for state and local approvals for a major transmission project, concluding that the statute permits overriding adverse local or regional outcomes in limited circumstances and that EFSB’s environmental and public-interest findings were lawfully made and supported by substantial evidence.


Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 932 N.E.2d 787 (Mass. 2010)