Wind power and nuisance litigation.

• Author: Brown, Jeromy E.

This article originally appeared in two parts in the April 2013 and May 2013 Environmental and Energy Law Committee newsletters.

AROUND THE GLOBE people seek ways to provide ever increasing demands for electric power to developing--and developed--nations while minimizing the impact power production has on our environment. Regardless of one's personal view as to whether fossil fuels have negatively impacted our environment, the global perception of fossil fuels upon the environment has resulted in a quest for viable alternative energy sources and joint efforts between the private sector and governments around the world to bring to market reliable and renewable sources of energy as never before. One of the alternative sources of energy that has received much focus, and investment, in the last decade is wind power. The purpose of this paper is to outline basic issues that arise when current day wind power sources are installed. To do so, we will briefly address international issues pushing development of alternative energy sources, such as wind power, and we will outline basic issues encountered when installing a wind power site. We will then specifically address issues that have consistently arisen around the globe in an array of tribunals by those who allege problems resulting from wind power sources by way of nuisance (or nuisance type) claims against wind power companies.

1. International Treaties And Federal Laws Have Had A Direct Impact Upon The Development Of Renewable Energy Sources Such As Wind Energy

On December 11, 1997, an international treaty known as the Kyoto Protocol was adopted. (1) At the time of this writing, the Kyoto Protocol has been signed by 84 nations or territories with a total of 192 nations or territories acceding to the agreement since its enactment. (2) Under the Kyoto Protocol, limits on greenhouse gas emissions were set for thirty seven industrialized nations. (3) Under the Kyoto Protocol, at the simplest level, nations are essentially required to reduce their "carbon footprint". This is accomplished through regulation of the amount of carbon dioxide emitted in the nation by both public and private sources. There are multiple mechanisms under Kyoto Protocol to accomplish this goal. One of the mechanisms involves International Emissions Trading. This is commonly known as the trading of carbon credits. By trading carbon credits, private entities can essentially "buy" compliance with the limitations imposed by the Kyoto Protocol. "The mitigation of carbon footprints through the support of alternative projects, such as reforestation (tree planting), grasslands restoration, or the use of solar or wind energy is one way of reducing one's carbon footprint, and is known as carbon offsetting." (4) Through the trade of carbon credits, alternative energy projects have been offered a global investment source never before comprehended.

The United States has not yet acceded to Kyoto, but there is certainly pressure for the United States to participate in Kyoto Protocol. Though not a response to Kyoto, federal legislation and federal directives somewhat akin to Kyoto Protocol have been enacted in the United States. Federal measures are not aimed at reducing greenhouse emissions as much as to encourage development of additional energy sources, which has the same ultimate effect over time. The U.S. Department of Energy summarized obligations of public utilities within the U.S. to use renewable resources as a source of consumer energy as follows: (5)

The Energy Policy Act of 2005 ("EPACT 2005;" Pub. L. 109-58) requires, in part, that the President, acting through the Secretary of Energy, shall seek to ensure that, to the extent economically feasible and technically practicable, of the total amount of electric energy the Federal government consumes during any fiscal year, the following amounts shall be renewable energy:

1. Not less than 3 percent in fiscal years 2007 through 2009

2. Not less than 5 percent in fiscal years 2010 through 2012

3. Not less than 7.5 percent in fiscal year 2013 and each fiscal year thereafter.

   Executive Order (EO) 13423 requires that agencies:

   [E]nsure that (i) at least half of the statutorily required renewable energy consumed by the agency in a fiscal year comes from new renewable sources and (ii) to the extent feasible, the agency implements renewable energy generation projects on agency property for agency use. The United States actually has an established history of federal legislation focusing the energy industry upon alternative fuel sources and development. The Public Utility Regulatory Policies Act of 1978 (PURPA) was enacted in response to the 1970's oil crisis. (6) PURPA encouraged, and required, the development of alternative sources of power for electrical power generation. (7)

   To the local practitioner defending a claim of nuisance in a wind energy lawsuit, these international treaties and federal laws may not seem to have any significance to a jury considering the issues discussed below. However, nothing could be further from the truth--when defending a renewable energy company, such as a wind power company, the attorney has the ability to argue that company did not install a wind farm merely for profit, but these renewable resources are needed and required by law as a result of a worldwide outcry for better ways to power modern creature comforts. It is with this broad overview of international and federal issues that we now turn to the direct issues of a wind farm.

   2. Wind Farm Components

      When a power company considers installing a wind farm, the most basic principle of retail business comes into play --LOCATION, LOCATION, LOCATION! There are certain variables that must come together for a...