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Cross-Sound Blues

Legal challenges continue for the undersea transmission line.

Fortnightly Magazine - February 2004

permit and was not eligible for the COP process. Similarly, the CDEP found that the more permanent modifications of the burial depth requested in the May COP application were not appropriate for authorization through the COP process.

The CDEP suggested that Cross-Sound file a new permit application if it wished to seek the changes in burial depth requirements requested in the COP applications. Cross-Sound therefore filed a new permit application with the CDEP on June 12, 2003. In the new application, Cross-Sound requested that the CDEP issue a permit to allow operation of the cable as installed until the expiration of the permit.

However, on June 26, 2003, Connecticut Gov. John Rowland signed into law a bill extending the moratorium until June 3, 2004. Because of the new 2003 moratorium, the CDEP has not considered the new permit application.

Moreover, this is not the only remaining legal hurdle facing the Cross-Sound project.

Clams and Courts

Connecticut leases shellfish beds in Long Island Sound to fishermen for a nominal annual fee, allowing the lessees to use the beds for cultivating and harvesting shellfish. Before Cross-Sound installed its cable, it reached a settlement with the shellfish companies that leased the shellfish beds the cable would cross. In mid-2002, however, a company whose shellfish bed was not traversed by the cable, claimed to the CDEP that the project's installation damaged its shellfish bed in New Haven Harbor. The CDEP undertook an extensive investigation of the shellfish company's claim, including consultation with federal and state agencies, and found "no evidence that the process of laying and burying the cable was causally related to the damage alleged." (According to the CDEP, the data suggest a naturally occurring sand wave caused the damage to the company's shellfish bed.)

Notwithstanding the CDEP's determination, the shellfish company sued Cross-Sound in Connecticut Superior Court in July 2003, claiming that cable installation adversely affected its leased beds. The lawsuit remains pending.

Meanwhile, the Connecticut attorney general's appeal before the Connecticut Supreme Court of the Siting Council approval, reached its conclusion in 2003. Oral argument was set for September 2003, but the attorney general withdrew his appeal before the hearing could proceed. However, on the same day the attorney general withdrew his appeal, he filed a new petition in the U.S. Court of Appeals for the Second Circuit, challenging the DOE's post-blackout emergency order. Hours after the grid failure occurred on Aug. 14, the DOE issued an emergency order directing the New York ISO and ISO New England to require Cross-Sound to operate its cable. The DOE stated that, "within hours, it was delivering 300 MW of energy from Connecticut to Long Island and also providing valuable voltage support and stabilization services for the electric transmission systems in both New England and New York."

On Aug. 28, 2003, the DOE issued another emergency order directing Cross-Sound to continue operating the cable "until such time as the emergency identified in [the] order ceases to exist." Since August, the cable has transmitted electricity with no apparent harm to navigation or the environment. Nonetheless, on Aug.