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TOWN OF BARNSTABLE, MASS. v. F.A.A.

Nos. 12-1362, 12-1363.

740 F.3d 681 (2014)

TOWN OF BARNSTABLE, MASSACHUSETTS, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent. Cape Wind Associates, LLC, Intervenor.

United States Court of Appeals, District of Columbia Circuit.

Decided January 22, 2014.

Attorney(s) appearing for the Case

W. Eric Pilsk argued the cause for petitioners. With him on the briefs were Charles C. Lemley and Catherine M. van Heuven.

Daniel J. Lenerz , Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Stuart F. Delery , Principal Deputy Assistant Attorney General, Michael J. Singer , Attorney, Richard H. Saltsman , Assistant Chief Counsel for Litigation, Federal Aviation Administration, and Vicki Leemon , Manager, Adjudication Branch.

Christopher H. Marraro argued the cause for intervenor Cape Wind Associates, LLC. With him on the brief was Geraldine E. Edens.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This case arises in the context of the approval of a lease by the U.S. Department of Interior to Cape Wind Associates for construction of an offshore wind farm in Nantucket Sound. Under the lease, Cape Wind must obtain the Federal Aviation Administration's ("FAA") determination whether the turbines pose a hazard to air navigation and comply with any mitigation measures before beginning construction. In Town of Barnstable, Mass. v. FAA,

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