Renewable Energy or Renewable Nuisances

Bright red lights shining through windows at night, coupled with the endless drone of a wind turbine chopping through the air at all hours of the day—these are just two of the complaints from residents near wind farms in the ongoing struggle between a peaceful life and the pursuit of renewable energy.

The leading case on this issue in Texas is Rankin v. FPL Energy, LLC. The Eleventh District Court of Appeals ruled that the operation of a wind farm cannot be deemed a nuisance merely based on its aesthetic impact alone. Instead, a nuisance in fact must be based on the encroachment upon property through elements such as light, noise, smell, or external materials like floodwater or pests. Rankin became the leading case on the issue of wind turbine nuisance suits. While the Texas court ruled that a lawsuit against a wind energy company due to aesthetic impact would not be recognized, it emphasized however that this ruling would not disallow all nuisance claims, such as those related to noise or light. Even though the aesthetic claims were dismissed by the court in Rankin, its claims regarding the noise emanating from the wind turbines and its blinking red lights were allowed to proceed to trial. The Rankin court highlighted that it was in agreement with the 14^th Court of Appeals ruling in GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, that the existence of intense light, noisy disturbances, emissions such as smoke and soot, noxious gases, and the like, when reaching a significant level, can give rise to a nuisance even without causing harm to property or individuals.

While the case of Rankin was decided fifteen years ago, its effects are still prevalent today with claims and disputes between wind energy companies and landowners regarding noise pollution and disruption of landscapes. On March 23, 2023, in Wilkey v. Wed Portsmouth One, LLC, plaintiffs living between 740 and 1,155 feet from a wind turbine alleged the new turbine constituted a nuisance because it generated more noise and shadow flickers than the prior turbine located there. A shadow flicker occurs when the sun shines through the wind turbine’s rotating blades and casts a moving shadow. Specific complaints included being prevented from opening windows to get fresh air and having to run the air conditioning year-round because the noise generated by the turbine prevented a plaintiff from opening her window. The plaintiffs also emphasized the shadow flicker is “so pronounced that it infringes on daily life activities, such as watching television, doing the dishes, and even driving around town,” and it further causes migraines and nausea. The court denied the plaintiffs’ motion for a preliminary injunction after weighing the public interest of the wind turbine with that of the plaintiffs’ alleged harm. The court found the public interest was better served by allowing the wind turbine to continue its operations, especially since the wind turbine had been operating for the last five years prior to the plaintiffs filing suit. Additionally, the court did not think the plaintiffs offered sufficient evidence to succeed on either the public or private nuisance claim. This case highlights how courts may place the public interest at a much higher level and demand more evidence from plaintiffs to be successful on these claims. Outcomes, such as that in Wilkey, may deter landowners from filing nuisance suits against large energy companies if courts continue to heavily base their rulings on the energy public policy.

Building wind turbines is also driven by the incentive of tax credits, such as the production tax credit (“PTC”). In 2014, the chairman and CEO of Berkshire Hathaway, stated that the only reason to build wind projects is to collect the PTC, and that wind farms do not make sense without the tax credit. With growing transparency in the use of tax incentives, it becomes increasingly evident that companies, rather than the public, are primarily reaping the benefits of wind farms; this could potentially lead to a significant decline in public interest in the construction of windmill farms. Furthermore, courts may be concerned that a single successful lawsuit against an energy company due to wind turbine-related nuisances could set a precedent, potentially opening the floodgates for numerous similar cases in the future.

As the pressure towards a more renewable world builds, judges may face challenges in deciding whether to give deference to a suffering landowner or a much more powerful energy company, successfully keeping an impactful façade of its purpose to improve sustainability. The movement towards renewable energy across the nation has transformed into a detrimental impact on rural areas, driven by potentially misguided incentives.

Kuiper Law Firm, PLLC specializes in oil and gas issues. Additionally, we will continue to monitor any updates on this matter. If you have any questions about the information in this article, please do not hesitate to contact us.