Transcript LIMITING WIND FARM LIABILITY - Department of Agricultural

www.NationalAgLawCenter.org
Legal Issues Surrounding the
Impacts of Wind Projects
Rusty Rumley
Staff Attorney, National Ag Law Center
479-575-7646 • [email protected]
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Outline
 Impacts to Landowners
 Nuisance claims against wind projects
 Other tort claims surrounding wind projects
 Environmental Impacts
 Endangered Species Act
Impacts to Landowners
 There are many potential positive and negative
impacts of wind projects to the surrounding
landowners and community.

Economic, environmental, legal, and so on…
 I’m going to be addressing some of the legal issues
that can arise with landowners and environmental
concerns

Both those that signed a lease agreement and those that did
not
What is a Tort?
A person is legally
Everyone is
responsible if their
entitled to not be
action injures
injured and not to
someone else or
have their
damages someone
property damaged
else’s property
Tort:
• A wrongful act or omission which injures another person's body, property,
or reputation.
• These have existed for hundreds of years and served as environmental
laws long before anyone had thought about the environment
Tort Claims Against Wind Projects
 Noise, Vibrations,
“Shadow Flicker”
 Aesthetics (the scenery)
 Other Tort Concerns


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Ice Throw
Blade Shear
Fire
Roaming livestock
Nuisance
 Nuisance – a substantial and unreasonable
interference with a person's enjoyment and use of
their land


2 types: Public and Private
This covers a wide range of actions such as
Noise
 Odor
 Lights
 Dust
 Flies
 And so on…

Nuisance
 Elements
 Fault - defendant intentionally, negligently, or recklessly
interfered with plaintiff.


Substantial and ongoing (not petty…)


This one typically isn’t hard to show
In some cases this can be hard to show, but this is not an issue
with wind projects because of their long life
Reasonableness (utility vs. harm)
This element is the one that suits against wind projects have had
trouble with…
 “Does the gravity of harm outweigh the social value of the activity
that allegedly caused the harm”

Noise, Vibrations & Shadow Flicker
 One of the more common claims brought against wind
projects and typically more successful than other claims

Reasonableness is still a big issue and it makes it incredibly fact
specific.
A certain level of noise may be a nuisance in OKC, but it may be
“reasonable” in northern OK.
 How is that noise being generated? Nightclub v. construction project


Other factors come into play:
Improved engineering, such as reducing the thickness of the blades,
has decrease the sound issue which may make it more “reasonable”
 Where is it located, what is the setback requirement, where is the
nearest house, etc…

SHADOW FLICKER
Example
 Ted is a landowner that lives very near a wind project
and he is suing the developer under nuisance
because of the shadow flicker. What may happen?


If Ted signed a lease or any contract then may very well have
signed away any right to sue…read the contract carefully!
If Ted did not sign the contract then you walk through the
elements of nuisance.
Is someone at fault?
 Is the problem substantial and ongoing?
 What is the reasonableness v. the harm?
 This is where Ted will have a difficult time…

AESTHETIC NUISANCES
 These are brought
claiming that the view
has been detrimentally
altered.


Typically these claims are
not very successful if
brought by themselves
because this is so
subjective
Remember the old saying,
“Beauty is in the eye of the
beholder”
Other Causes of Action
 Trespass – a direct physical invasion of someone’s real
property (land)

This is the other side of nuisance. Something or someone has to
actually enter on to your property.
While this can include somebody coming on to your property without
permission it can also include:
 Ice throw – this is ice freezing to the blade and then being thrown
out once the turbine starts turning again
 Blade sheer – a blade breaking off
What makes this unique is that there is no “reasonableness”
standard…any trespass can give rise to a lawsuit even if there are no
damages (but it helps to have damages)
Other Causes of Action
 Negligence - The failure to act
as an ordinary, reasonable, and
prudent person under the same
or similar circumstances.
 This is typically the catchall
and many lawsuits in the US
are brought under this
 This would cover things such as
fires started by turbines or if
the people maintaining the
turbine left a gate open and
cattle got out into the road.
 Like many of the other torts
this one is very fact specific
 You can protect against this by
contract in many cases
Remedies
If a tort action is successful then there is the question
of “Where do you go from here?”
 Typically if someone is successful with a tort case
then they can either recover damages ($$$) or ask
for an injunction

Many nuisance claims ask for an injunction which works like a
cease and desist order
 However, because of the gross expenditure of capital,
courts are less likely to enjoin a wind project which is
either under construction or already producing
energy
Torts Summary
 If no contract has been signed then the general rules
surrounding torts applies
 The ability to bring a lawsuit can be modified by a
contract (i.e. a lease)…check your lease

Depending upon the lease agreement, it may have a clause
stating that you release them from any liability
 This right to bring a lawsuit can be contracted away
even if no turbine was placed on your property
 It is a good idea to address concerns such as damage
to property (ice throw, fire and cattle getting out) in
the contract
Environmental Impacts
 Today we are going to
focus on the Endangered
Species Act.
 There are other
environmental laws out
there that are important,
but this be a problem for
both the wind project
and you as a landowner
…
Endangered Species Act
 How does this issue come up and why is it important
to landowners as well?


Before any large project begins that has some form of federal
funding or tax incentives the developer must do an
environmental impact statement (which is mandated by
another environmental law) and part of that includes a very
detailed study of all the animals and plants in the area
If they find an endangered or threatened species then it is an
issue for everybody…including you as a landowner
Endangered Species Act
 Purpose: To “protect and recover imperiled species
and the ecosystems upon which they depend.”
 How?

Species may be listed as either endangered or threatened.
“Endangered” means a species is in danger of extinction
throughout all or a significant portion of its range.
 “Threatened” means a species is likely to become endangered
within the foreseeable future.

ESA: Who’s in Charge?
 U.S. Fish and Wildlife Service (FWS) has primary
responsibility for terrestrial and freshwater
organisms
 National Marine Fisheries Service (NMFS) is
responsible for marine wildlife such as whales and
anadromons fish such as salmon.

Anadromons: “Fish ascending rivers from the sea for breeding”
ESA: How are they listed?
 FWS considers five factors:
 damage to, or destruction of, a species’ habitat
 overutilization of the species for commercial, recreational,
scientific, or educational purposes
 disease or predation
 inadequacy of existing protection; and
 other natural or manmade factors that affect the continued
existence of the species.
ESA: Consequences of “Listing”
 The “take” of listed animals is prohibited
 “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect or attempt to engage in any such conduct.”
 “Harm” is “an act which actually kills or injures wildlife.”

Such an act may include significant habitat modification or
degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering.”
 The interstate or international trade in listed plants
and animals, including their parts and products is
also prohibited
Endangered Species Act
 This statute is one where
landowners need to be
careful because it is
VERY easy to “take” an
animal!



Snail darters
Black-tailed Prairie Dogs
Fence lines
In some ways the ESA can
work almost like an
easement against the
landowner
Bat Mortality
 Often this is the type of animal that is most affected
by wind turbines (it is a bit of an issue with some
birds however)
 Two Causes


Collisions
Barotrama

Damage caused to enclosed air-containing cavities (lungs,
eardrums, etc.) as a result of a rapid change in external pressure
Animal Welfare Institute v. Beech Ridge Energy LLC
 Policy Analysis of the ESA of 1973 versus legislation
promoting renewable energy
 Court held for the Animal Welfare Institute because
of the severe effect on the Indiana bat population of
West Virginia

Part of the issue in this case was that the developer did not do
a very thorough job of preparing the environmental impact
statement…they went out and looked for endangered species in
the summer, but did not think about migrating species.
Endangered Species Act Summary
 The ESA is a powerful piece of environmental law
 If an endangered species is found in the area then
the FWS has some extraordinary powers that they
can use to protect that species
 This can closely resemble an easement on your
property…they cannot make you take any affirmative
actions to help the species, but they can stop you
from making any changes to your property that
might adversely affect the species
Any Questions?
Disclaimer
The University of Arkansas National Agricultural Law Center does not provide
legal advice. Any information provided on or by this Web site is not intended to
be legal advice, nor is it intended to be a substitute for legal services from a
competent professional. This work is supported by the U.S. Department of
Agriculture under Agreement No. 59-8201-9-115, and any opinions, findings,
conclusions, or recommendations expressed in the material on this Web site do
not necessarily reflect the view of the U.S. Department of Agriculture.
Web site: www.NationalAgLawCenter.org
Phone: (479)575-7646
Email: [email protected]