The developer of a $452 million wind farm in rural Oklahoma has asked a federal court to dismiss a class action opposing the project, asserting a lack of scientific support for plaintiffs’ trespass and nuisance claims.
In a Sept. 23 motion filed in the U.S. District Court for the Western District of Oklahoma, Apex Clean Energy and other defendants said the complaint brought by nearby homeowners and the Oklahoma Wind Action Association “fails to plead facts sufficient to plausibly suggest that plaintiffs will be able to prevail on their asserted claims."
Virginia-based Apex and related entities are developing the Kingfisher Wind project, which will include 500-foot turbines on privately leased land in Canadian and Kingfisher counties in Oklahoma.
In their complaint, filed Aug. 27, plaintiffs said they want to "enjoin defendants from creating a nuisance that will cause unreasonable inconvenience, interference, annoyance, adverse health effects, and loss of use and value of each plaintiff and class member’s property."
Apex's motion said plaintiffs have interfered with the developer's efforts to move forward on the project for two years. "Now that their petitions to city, county, and state governments have failed, Plaintiffs filed this lawsuit as a last-ditch effort to stop the proposed wind farm."
Apex argues the association lacks standing to sue, and therefore the complaint should be dismissed. Apex also claims the complaint is deficient because it fails to distinguish between defendants.
In addition, the plaintiffs’ anticipatory nuisance claim fails because the complaint does not show any plaintiff is likely to suffer substantial, irreparable harm, Apex argues. "Although there is a conclusory reference that some unspecified health effects have been observed up to three miles from a turbine, the complaint does not identify what those alleged health effects are, how likely they are to occur, or how prevalent or severe the alleged effects will be."
Further, the complaint "does not allege plaintiffs' property is likely to be physically invaded by the turbines," Apex said, arguing that "noise is not a physical invasion."
Finally, Apex asserts the class allegations should be dismissed because the proposed class is not presently ascertainable.