WIND LAW
Wind Energy Seminar
March 21 and 28, 2012
“Litigation”
Steven K. DeWolf
[email protected]
&
Rod E. Wetsel
[email protected]
Office Hours:
Wednesdays 2:00 to 3:30 p.m. or by appointment
Townes 3.119(H)
Litigation
•Opposition to Wind Farms
•Common Law Nuisance and Trespass
•Incompatible Surface Uses for Commercial Purposes
Oil and Gas v. Wind
Opposition to Wind Farms
• 4 Major Types of Litigation
1. Common Law Nuisance/Trespass
a) Neighboring Landowners
b) Incompatible uses of land for commercial purposes (Oil & Gas v.
Wind
2. Environmental Statutes (Wildlife)
3. Other Federal Statutes and Regulations (FAA)
4. Permitting and Siting
a) Varies from state to state on local government level
Common Law Nuisance & Trespass
• Rose v. Chaikin, 453 A.2d 1378 (N.J. Super. 1982)
• Involved a single wind turbine for residential use
• Single-family homes located in a contiguous residential neighborhood.
Pursuant to a permit defendant erected a 60'-high tower on top of which
was housed a small turbine. The turbine was located ten feet from the
property line of one plaintiff.
• Held: The noise produced by a residential wind turbine exceeded the
decibel levels permitted by the city ordinance and was found to be
“offensive to persons of ordinary sensibilities.”
•Rassier v. Houim, 488 NW 2d 635 (N.D. 1992)
• Also involved a single wind turbine generating
electricity for residential use installed on
residential lot with mobile homes.
• Held: Plaintiff had moved nearby 2 years after
turbine erected and so had “come to the
nuisance.” Could have avoided the harm.
• Rankin v. FPL Energy LLC, 266 S.W. 3d 506 (Tex. App. -- Eastland
2008, pet. denied).
• Rural area, suit brought by neighboring landowners against FPL
and its Lessors regarding Horse Hollow Wind Farm in Taylor County,
Texas.
• Sought injunction in 2005 on grounds of public and private
common law nuisance.
• Claimed that ruined view and loss of property value were
both part of the “package” of problems caused by turbines
in Horse Hollow, among others:
• Red blinking lights on top of turbines
• Potential shadow and flicker effect
• Noise
• Trial Court granted partial summary judgment in favor of
FPL on aesthetic nuisance claims
• Went to jury mainly on noise trespass. Jury found for
defendants.
•Upheld by Eastland Court of Appeals (2008)
• Held: Neighbors emotional response due to loss of view
is insufficient to establish a cause of action for nuisance
(i.e. – there is no sight based nuisance in Texas).
• O’Dell v. FPL Energy, Cause No. 06-502, in 235th District Court of
Cooke County, Texas (2007)
• Like Rankin, neighboring landowners sought a temporary
injunction and damages based upon aesthetic objections and noise
regarding the Wolf Ridge Wind Farm near Muenster, Texas.
• Trial court granted partial summary judgment on aesthetics claims
and case was settled in 2007.
• Black v. Gamesa Wind US, LLC et al., Cause No.
06-0129, In District Court of Jack County, Texas
(2006)
• Sought to stop construction of Gamesa Wind
Farm in Jack County, Texas
• Alleged noise, negative visual impact from
blinking red lights, shadow effect, damage to
wildlife habitats and health dangers. Also claimed
wind was misguided public policy.
•Trial court awarded Gamesa partial summary
judgment on aesthetics and public policy and
plaintiffs filed a non-suit.
• Burch v. Nedpower Mount Storm, LLC, 647 S.E. 2d 879 (W. Va. 2007)
• Same claims as in Rankin plus danger from ice flung from rotor blades
• West Virginia Supreme Court upheld authority of West Virginia Public
Service Commission in ruling that operation of wind farm was reasonable.
•
American Electric Power Co. v. Connecticut, 131 S.Ct. 2527 (2011)
•
Eight states, et al., filed suit in U.S. District Court in 2004 to
restrict power plant greenhouse gas emissions under common
law of nuisance regarding six coal fired plants
• U.S. District Court dismissed and in 2009 U.S. Second Circuit
Court of Appeals reversed and reinstated the suit.
• U.S. Supreme Court reversed the Court of Appeals. Held:
Clean Air Act and EPA displace any federal common law right
to seek abatement of CO2 emissions from fossil-fuel fired
plants
Incompatible Surface Uses for Commercial
Purposes
•
Oil & Gas v. Wind
•
Cordele Development Corporation v. Cedro Hill Wind LLC, et al., Cause
No. 2010CVQ-000649-D1, in the District Court of Webb County, Texas,
49th Judicial District (2009-2010)
•
Plaintiff was oil and gas lessee. Defendants were wind lessee
and its assigns and surface owner lessor of wind lease
•
Plaintiff sued wind lessee for:
•
Declaratory Judgment, i.e. dominant mineral estate and
trespass; sought to uphold agreement to “make Plaintiff
whole”
•
Breach of contract
•
Tortious interference with contract – beginning wind
construction intentionally interfered with oil and gas lease
•
Interference and invasion of property rights in minerals
•
Negligence – duty to search title and didn’t
•
Gross negligence – acts were intentional and reckless
•
Malicious civil prosecution – wind lessee filed frivolous
lawsuit in Federal Court to offset Plaintiff’s claims.
•
Cordele Development Corp. v. Cedar Hill Wind, LLC, cont.
•
Plaintiff sued landowner (Glory Ranch) for:
•
Negligence – Claimed Glory Ranch had duty to protect mineral
interests of Plaintiff and corresponding duty to refrain from granting
legal interests which were in excess of what it had the legal right to
grant. Glory Ranch had constructive and actual knowledge of
Plaintiff’s mineral interest and failed to confirm the right before
granting a wind lease. Claimed it was “breach of its legal duty and not
what a reasonable and prudent surface owner would have done.
•
Alleged that Glory Ranch failed to condition wind lease to Plaintiff’s
mineral easement.
•
Case ultimately settled in in 2010.
Oil and Gas v. Wind
•
Osage Nation v. Wind Capital Group, U.S. District Ct. N.D. Oklahoma
(2011)
•
In October 2011, the Osage Nation Indian Tribe filed suit in federal
district court to enjoin construction of a wind farm in Osage
County, OK where they own all mineral rights and have income
from oil and gas production.
•
Alleged unreasonable interference with Tribe’s rights under federal
and state law to access the surface estate necessary to develop
its mineral estate
•
On December 20, 2011, District Court held wind project would not
unlawfully interfere with Tribe’s federal and state rights. A
“speculative and hypothetical” possibility of interference did not
justify the request for an injunction.
•
Also held injunction would cause “certain harm” to the wind project
and to the public interest in renewable energy development.
•
Osage Nation appealed to the 10th Circuit. Briefs were due on
March 7, 2012 with the appeal given priority status.
Adverse Impact on Wildlife
•
Short list of animals affected by wind farms:
•
Birds
•
Hawks, eagles, and raptors
•
Black capped vireo
•
Golden Cheeked warbler
•
Sage Grouse
•
Prairie Chicken
•
Ducks, geese and other migratory birds
•
Sandhill cranes
•
Pelicans
•
Bats
•
Indiana bat
•
Hoary bats
•
•
•
Whitetail deer, mule deer, elks and exotics
Horned toad
Ocean life
Adverse Impact on Wildlife
•
Coastal Habitat Alliance v. Patterson, et al. 601 F. Supp. 2d 868 (W.D.
Tex. 2008), aff’d 2010 U.S. App. LEXIS 12392 (5th Cir. June 17, 2010).
•
Audubon Society and King Ranch formed Coastal Habitat Alliance
with goal to prevent wind farms from being built in coastal areas of
South Texas.
•
Alliance filed suit in Federal Court in Austin under Costal Zone
Management Act against the Commissioner of the Texas General
Land Office, the Commissioner of the PUCT, Gulf Wind (Babcock
and Brown) and Iberdrola.
•
Plaintiff alleged that Texas could not make major change in CZMA
plan without going through statutory process and public hearing
and by doing so had deprived members of the Alliance in their due
process rights.
•
Held: Alliance lacked standing. Granted Motion to Dismiss. CZMA
does not provide a private cause of action. Also, Alliance did not
allege a concrete injury or show requested relief, if granted, would
redress harm.
Adverse Impact on Wildlife
•
Western Watersheds Project v. Bureau of Land Management, 774
F. Supp. 2d 1089 ( D. Nev. 2011), aff’d 2011 WL 2784155 (9th Cir.
July 15, 2011)
•
BLM approved construction of 150 MW wind farm on 430
acres of public land near Great Basin National Park in Nevada
•
Environmental groups filed suit in Federal District Court and
sought a preliminary injunction. Alleged BLM did not
adequately consider impact on Greater Sage Grouse and
Brazilian Free-Tailed bats
•
Federal District Court denied motion for preliminary injunction
in December 2011.
•
Held: Plaintiffs failed to show they were likely to succeed on
merits
Adverse Impact on Wildlife
•
Western Watersheds Project v. Bureau of Land Management, continued
•
BLM had required appropriate mitigation measures for the sage
grouse.
•
BLM restrictions on turbine operation during migratory period
and required radar and monitoring were adequate to protect the
one million Brazilian free tailed bats that stop 4 miles away at
Rose Guano Cave each year
•
Plaintiff’s failed to show injunction would prevent irreparable
harm
•
Project delay would harm federal renewable energy goals and
deprive Nevada of economic development benefits.
•
9th Circuit Court of Appeals affirmed, but one justice stated
Plaintiff’s would succeed on merits . Case still going in District
Court.