Admiralty lawyers see Cape Wind farm as a navigational menace

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All it lacks is a beautiful woman, and the Cape Cod, Mass., wind farm fight would be the Trojan War of environmental disputes. That’s how big it is and how long it’s gone on. Instead of Hector, Achilles and Odysseus, we have Ted Kennedy, Walter Cronkite and industrialist Bill Koch (of Koch brothers fame) all on the same odd-bedfellow team, opposing an alternative energy project that seems to have had the blessings of the administrations of both George W. and Barack H.

I’ve been to a wind farm on land in the Dominican Republic. The experience is unforgettable. The image below cannot convey how massive these things are. One blade is almost half-again as long as the distance from second base to home plate. The hub is the size of a school bus. Standing below the turning blades, you hear a whoooshhh and feel a visceral sense of awe.

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Cape Wind wants to plant 130 of these on Horseshoe Shoal, some as close as a quarter-mile apart. The litigation against the project continues and was recently joined for the first time by groups represented by non-environmental lawyers.

Enter Todd Lochner of Annapolis and John Fulweiler of Newport, both admiralty lawyers, representing the Marine Trades Association of Cape Cod and the Massachusetts Fishermen’s Partnership. They’ve filed a “friend of the court” motion inserting themselves in an ongoing federal lawsuit against Cape Wind Associates.

‘LOSS OF LIFE’

Lochner and Fulweiler are the first to articulate a case against the wind farm based on the navigational argument, and they are asking the court to order the Coast Guard, which has already blessed the project, to take another look. “We’re looking at casualties and the real possibility of loss of life,” Lochner says.

 Britain’s Sheringham Shoal offshore wind farm consists of 88 turbines over a total area of approximately 14 square miles.

Britain’s Sheringham Shoal offshore wind farm consists of 88 turbines over a total area of approximately 14 square miles.

I was surprised to learn from their pleading — and it’s a fact that I’ve confirmed — that windmills such as these degrade the effectiveness of radar. I grew up on Cape Cod and have not transited Nantucket Sound in more than 20 years, but I remember the last time I did. We had zero visibility. Thanks to my radar reflector, the Nantucket ferry detected my 28-foot sailboat and steered a U-shaped detour around us. How did I know that in zero visibility? Because the skipper repeatedly sounded his horn during this maneuver. And those were the days before the words “high speed” described any ferry in Cape waters.

Here’s what Lochner and Fulweiler told the judge:

Two vessels traveling at six knots apiece are each closing in on the other at 20.2 feet per second. Incredibly, at 500 feet apart, they will collide in 24.7 seconds! At 1,000 feet apart, they will have approximately 49 seconds before impact. When you include the speed it takes for a fog horn's sound wave to travel to the other vessel, as well as the time it takes to initiate evasive action, we are talking about a very, very small window of opportunity to avoid a collision — and these are examples run at the very modest speed of six knots, which for many vessels represents bare steerageway.

At the seemingly decent distance of one-half nautical mile (3,038 feet), two vessels approaching each other at 14 knots are closing together so quickly that they will have a mere 64.36 seconds to see each other, sound their fog horns, and take evasive action — all within the confines of a matrix littered with wind turbines affixed atop cement monopiles, shoal waters and other boaters.

Scarily, it begins to sound like a variation of a reduction ad absurdum argument when you calculate the speed of a 30 knot Hi-Line Cruises ferry closing in on a fishing vessel under way at five knots (actual speed paradigms utilized in a radar study supplied to the Coast Guard):

1/2 Nautical Mile --- 51.45 seconds to impact

1/4 Nautical Mile --- 25.72 seconds to impact

1,000 Feet --- 16.93 seconds to impact

500 Feet --- 8.46 seconds to impact

The AMICI (Friend of the Court) is unaware of any Coast Guard analysis undertaken to determine whether, in point of fact, application of early 20th century navigational warnings in the vicinity of Nantucket Sound are an adequate alternative to a radar display and the ability to plot radar targets. The only analysis the AMICI is aware of establishes that, indeed, the wind farm impacts radar performance.

The AMICI submit that their back-of-the-napkin calculations make clear that the interaction of vessels within and around the wind farm will be extremely risky and that these risks were never properly treated because the Coast Guard never considered (or refused to consider), among other things, whether adjusting the physical parameters of the wind farm would prove the safest way to [preserve] navigational safety on Nantucket Sound.

Evidence in the court record suggests that on any given summer day, about 40 vessels are plying the waters over and around Horseshoe Shoal. Lochner and Fulweiler are saying that with the Cape Wind farm, those boats will rely on 19th century anti-collision techniques at potentially 21st century speeds, though one would hope under those circumstances everyone would be throttling back.

MIXING METAPHORS

I repeat these arguments not because I oppose the wind farm. I share them because they should interest mariners, and I have long admired Lochner’s work. Plus, the brief is about as well written as I have ever seen in a court document (Lochner credits Fulweiler), and as a reporter, I covered the federal courts for years. Click here to see the AMICI brief.

Bottom line: There will be blood.

No doubt.

Planes crash. We tolerate carnage on the highways for an efficient road network, just as we tolerated wrecks and livestock deaths for rail transportation. I suspect the same kind of cost-benefit analysis will prevail here. Danish investors just put the first $200 million down, and the wind farm inches forward.

In which case another literary metaphor pertains. Lochner and Fulweiler may well be the maritime law equivalents of Don Quixote and Sancho Panza, tilting at windmills imagined as monsters, though I would not venture to say which of the two is lunatic and which is peasant.