WV Supreme Court decision on Nedpower

On April 2, 2003, The West Virginia Public Service Commission ("the PSC") granted NedPower Mount Storm LLC, an appellee to this case, a certificate of convenience and necessity to construct and operate a wind power electric generating facility along the Allegheny Front in Grant County. NedPower has entered into a contract with appellee Shell WindEnergy, Inc., to sell the entire facility to Shell upon its completion.

The wind power facility will be located on a site approximately 14 miles long with an average width of one-half mile. The facility is to include up to 200 wind turbines. Each turbine is to be mounted on a steel tower approximately 15 feet in diameter and 210 to 450 feet in height, and have three blades of approximately 115 feet.

The appellants are seven homeowners who live from about one-half mile to two miles from the projected wind turbines. On November 23, 2005, the appellants filed a complaint in the Circuit Court of Grant County seeking to permanently enjoin NedPower and Shell WindEnergy, Inc., from constructing and operating the wind power facility on the basis that it would create a private nuisance. Specifically, the appellants asserted that they will be negatively impacted by noise from the wind turbines; the turbines will create a "flicker" or "strobe" effect when the sun is near the horizon; the turbines will pose a significant danger from broken blades, ice throws, and collapsing towers; and the wind power facility will cause a reduction in the appellants' property values.

The appellees subsequently filed a joint motion for judgment on the pleadings in which they essentially argued that a circuit court has no jurisdiction to enjoin, as a prospective private nuisance, projects authorized by the PSC, and that a private party cannot collaterally attack a final order of the PSC by means of bringing an injunction action in circuit court.

By order of April 7, 2006, the circuit court granted the appellees' motion for judgment on the pleadings and dismissed the appellants' action with prejudice. The circuit court based its ruling on the following grounds: it has no jurisdiction to enjoin the construction of a project that was approved by the PSC; most of the assertions made by the appellants concern activities that constitute a public rather than a private nuisance; a prospective injunction is not a proper remedy in this case because the wind facility is not a nuisance per se and does not constitute an impending or imminent danger of certain effect; and the PSC's approval of the facility collaterally estops the appellants from challenging it in circuit court.

The appellants appealed the circuit court's order with Amicus Curiae briefs having been filed with this Court in support of the appellees by the County Commission of Grant County, the Board of Education of Grant County, the Grant County Development authority, the Sheriff of Grant County, the Assessor of Grant County, Grant County landowners who have leased land to NedPower for the construction of the wind power facility, and the West Virginia State Building and Construction Trades Council, AFL-CIO. Grant County landowners who also live in close proximity to the approved site of the wind power facility have filed an amicus curiae brief in support of the appellants. We have considered the arguments of amici as well as those of the parties in rendering our decision.

CONCLUSION

In conclusion, having found no basis in law for the circuit court’s ruling that dismissed on the pleadings the appellants’ nuisance claim for an injunction, we reverse the April 7, 2006, order of the Circuit Court of Grant County, and we remand this case to the circuit court for proceedings consistent with this opinion.

Reversed and remanded.