Sucking the air out of wind energy: nuisance litigation and its effect on wind energy development.

• Author: Kusmin, Ryan

INTRODUCTION

Global climate change is a major threat facing our country and the world. (1) The consequences of climate change are likely to be significant and far reaching, including increasing droughts, sea-level rises and flooding in coastal areas, potentially adverse effects on agriculture, and negative effects to human health. (2) Further, there is a general consensus in the scientific community that climate change is caused by human activities, (3) specifically emissions of greenhouse gases from the burning of fossil fuels. (4) Due to the potential consequences of climate change, the international community has been trying and continues to try to reduce anthropogenic greenhouse gas emissions. (5) In the United States, members of Congress continue to seek legislation that would address climate change by creating a cap-and-trade system, capping greenhouse gas emissions at a gradually reducing level and creating a market for the sale and purchase of emission credits. (6) The President has made reducing greenhouse gas emissions a priority as well, ordering the federal government to do so. (7)

Another priority of the President is to reduce the United States' dependence on foreign sources of energy (8) and, in the wake of the BP oil spill in the Gulf of Mexico, fossil fuels generally. (9) He is not alone; national leaders of both parties since the 1970s have expressed a desire to end the United States' "addiction" to oil and to make the country energy independent. (10) The United States imports roughly sixty percent of its oil, and this is believed to create significant problems, including "adding to the trade deficit," "national security threats," and "wild price swings" in energy. (11) The spilling of almost five million gallons of oil into the Gulf of Mexico and the as-of-yet untold environmental destruction from the BP oil spill illustrate that domestic fossil fuel production carries with it the potential for problems as well. (12)

Wind energy is a clean, alternative source of energy that does not create greenhouse gas pollutants and can be produced domestically. (13) While wind energy accounts for roughly only one percent of the energy produced in the United States, (14) the potential for wind energy is vast. (15) "[Wind] [r]esources in the contiguous United States, specifically in the central plain states, could accommodate as much as 16 times total current demand for electricity in the United States." (16) By obtaining more energy from wind, the United States could significantly reduce greenhouse gas emissions and slow the effects of climate change. (17) In addition, increased wind energy could reduce the United States' reliance on foreign energy and fossil fuels. (18) However, litigation aimed at enjoining the construction of wind energy facilities slows and increases the cost of potential wind energy development. (19) often, this litigation is based on the common-law doctrine of nuisance (20) and reflects a "not in my backyard" attitude. (21) This Note addresses the issue of nuisance claims against wind energy development and proposes a way to reduce litigation and thus speed the development of wind energy, fulfilling the twin goals of reducing greenhouse gas emissions and dependence on foreign oil. (22)

This Note contains five parts. Parts I-III introduce the legal issues involved in nuisance litigation against wind farms. Part I provides an overview of the common-law doctrine of nuisance. (23) Part II briefly discusses some of the relevant statutory law affecting wind farms and their placement. (24) Part III examines the relevant case law, looking at the primary cases of nuisance litigation against single wind generators (25) and wind farms. (26) Part IV begins by analyzing the case law discussed in Part III and describes which types of nuisance suits are most likely to prevail. (27) Part IV finishes with a discussion of the effects of nuisance suits, including their effect on the development of wind energy, regardless of the outcome. (28) After a discussion of right-to-farm statutes, (29) which serve as an imperfect model to my proposal, Part V proposes how immunity from nuisance litigation for wind farm developers could be formulated at the state level by creating right-to-wind statutes. (30)

1. COMMON LAW

   1. Private Nuisance

      Nuisance law is a common-law doctrine, having its roots in the assize of nuisance, which originated in England nearly 900 years ago. (31) As opposed to the doctrine of trespass, which occurred when a defendant actually entered the plaintiff s land, the assize of nuisance was for the defendant "who interfered with plaintiff s use and enjoyment of his property by acts done elsewhere than on plaintiff s land...." (32) The modern doctrine of private nuisance appears to trace its origin to the assize of nuisance, as the Restatement (Second) of Torts defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." (33)

      Not all interference, (34) however, rises to the level of a private nuisance. For a successful action, "the interference must be substantial and the harm significant." (35) "[A]s Dean Prosser ... noted, '[t]he law does not concern itself with trifles, or seek to remedy all the petty annoyances and disturbances of everyday life in a civilized community....'" (36) The standard used to measure the interference is whether a normal person or normal property in the neighborhood would consider the harm significant. (37)

   2. Public Nuisance

      Public nuisance has historical roots in a crime called a purpresture, which was an "'encroachment[] on the king's right'" and involved an action such as an "'obstruction of roads, non-repair of bridges, [or an] interference with light....'" (38) Today, a "public nuisance is an unreasonable interference with a right common to the general public." (39) of the two types of nuisance, litigants against wind farms generally pursue private nuisance, so public nuisance need not be discussed further. (40)

   3. Balancing Test

      Courts generally utilize a balancing test when evaluating a case alleging a nuisance. (41) Although the articulation of the test varies somewhat by state, (42) it generally involves weighing the seriousness of the harm caused to a neighbor against the social utility of the activity causing the harm. (43) Where the harm caused outweighs the social utility, a nuisance occurs. (44) To determine the seriousness of the harm, several factors are considered, including:

      (a) [t]he extent of the harm involved;

      (b) the character of the harm involved;

      (c) the social value that the law attaches to the type of use or enjoyment invaded;

      (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and

      (e) the burden on the person harmed of avoiding the harm. (45)

      To determine the social utility or value of the activity alleged to cause the harm, additional factors are considered: "(a) the social value that the law attaches to the primary purpose of the conduct; (b) the suitability of the conduct to the character of the locality; and (c) the impracticability of preventing or avoiding the invasion." (46)

   4. Defense of "Coming to the Nuisance "

      If a plaintiff successfully shows that the harm caused by the activity outweighs the social utility of the activity, he or she will have established a nuisance. (47) The defendant, however, can raise one of several defenses. (48) Of importance to this Note is the defense of "coming to the nuisance." (49) The basic argument is that the defendant was conducting the activity alleged to cause a nuisance before the plaintiff acquired the nearby property--hence, the plaintiff "came to the nuisance." (50) If the defendant can successfully prove the "coming to the nuisance" defense, it does not usually serve as a complete bar to recovery for the plaintiff, but becomes a factor weighed in favor of the defendant when the court makes its decision. (51) For farmers, the "coming to the nuisance" defense has been codified in the form of right-to-farm laws in all fifty states. (52) However, the right-to-farm legislation is stronger than the "coming to the nuisance" defense because it usually provides immunity from nuisance actions. (53)

   5. Remedies

      Plaintiffs in nuisance actions generally pursue injunctions or damages as a remedy. (54) "The usual basis for equitable intervention--the inadequacy of the remedy at law--is normally present in a private nuisance action." (55) Monetary damages can be awarded at the "election of the plaintiff or by the decision of the court to deny equitable relief. (56) In cases against wind generators and farms, injunction is the typical remedy sought. (57) Further, wind farms often face anticipatory nuisance claims, which a plaintiff brings before the nuisance has even commenced and before the plaintiff has experienced any harm. (58)

2. STATUTORY LAW

   Although the statutory law affecting wind farms is largely beyond the scope of this Note, there are a few key points worth mentioning. First, there are few states that provide mandatory guidance on the siting of wind farms outside of urban areas. (59) However, several states are beginning to provide nonmandatory guidance on the siting of wind farms in their jurisdictions. (60) occasionally, local governments create ordinances that affect the siting of wind farms. (61) Such ordinances may require the issuance of a permit before developers of wind farms may begin construction. (62)

3. CASE LAW

   Relatively few cases have addressed the issue of nuisance law with regard to wind energy. The following four cases are the only published cases that exist on the subject. (63) As wind energy continues to expand in the coming years, (64) it is likely that more cases will emerge, providing a richer body of law on this subject.

   1. Cases Involving a Single Wind Generator in a Residential Setting (65)

      1. Rose v. Chaikin (66)

         In Rose v. Chaikin, the plaintiff and...