Documents filed under Legal
The Massachusetts Appeals Court upheld a lower court's decision to deny intervention involving action between the town of Falmouth and the Falmouth zoning board of appeals in which judgment had already entered. The judgment declared that two wind turbines operated by the town were a nuisance and ordered that their operation cease and desist. The proposed interveners claimed that they were entitled to intervention as of right because they had compelling interests that were no longer being adequately represented by the town. The lower court ruled, and the appellate court affirmed that the motion be denied since the interveners could not likely establish standing, and that the motion was untimely. A portion of the 10-page order is provided below. The full order can be accessed by clicking the links on this page.
This important legal challenge of the Ohio Power Siting Board decision tests whether the Board ignored state law and the conditions of its own certificate approving construction of the Black Fork wind energy facility when it granted a requested extension of the permit. A detailed description of the case is provided below and at the link appearing on this page. Oral arguments were heard on August 1, 2018 and can be watched at this link. Black Fork is proposed as a 91-turbine facility with a maximum capacity of 200 megawatts. The permit was initially issued in 2012.
The West Virginia Public Service Commission issued this order denying a petition filed by the Appalachian Power Company (APCo) and Wheeling Power Company seeking consent and approval for APCo to acquire the Hardin wind generation facility (Hardin Wind Facility), that is under development in Hardin County, Ohio, and the Beech Ridge II wind generation facility (Beech Ridge II Wind Facility) that is under development in Greenbrier County, West Virginia. The Beech Ridge II facility is a 50 Mw wind project and the Hardin facility is a 175 Mw wind project. An excerpt of the order is provided below that highlights the reasons for the denial. The full order can be accessed via the links on this page.
Freeborn Wind proposed to construct an up to 84 MW wind energy facility and associated facilities in Freeborn County, Minnesota. The Project is part of an up to 200 MW wind project in Freeborn County, Minnesota, and Worth County, Iowa. In this final order of recommendation, the Administrative Law Judge concluded that Freeborn Wind failed to demonstrate that the proposed Project will meet the requirements of Minn. R. 7030.0040, the applicable Minnesota Noise Standards. Portions of the order are provided below. The full order can be accessed by clicking the document links on this page.
This important letter by acoustician Stephen Ambrose explains how two separate court decisions, one in Massachusetts and the other in Michigan, together provide clarity on what the minimum protective noise limits should be when siting industrial wind energy facilities. Mr. Ambrose's letter includes links to the two decisions as well as supporting background information. The content of the letter is shown below. The original can be downloaded from this page.
This important decision by US District Court Judge Thomas L. Ludington addresses two arguments proffered by the wind industry. The first relates to the industry's argument that noise standards for limiting turbine noise emissions that are based on Lmax are not reasonable. The second discusses the argument that restricitve ordinances, in this case an Lmax noise limit, are de facto exclusionay zoning. Judge Ludington takes both claims on and finds the wind company's arguments are without merit. A portion of the decision is provided below. The full decision can be downloaded from this page.
In this important decision by the Ontario Environmental Review Tribune, the Tribune officially revokes Wpd Canada's permit to install eight 137-meter (450 feet) tall wind turbines in close proximity to the Collingwood Regional Airport and a private air field owned by Kevin and Gail Elwood. In its October 2016 decision, the ERT had determined that the appellants met the test that showed there would be harm to human health. The ERT also agreed that irreversible harm to the natural environment, specifically to bats, warranted further investigation. Wpd Canada was granted an opportunity to show that mitigation could resolve the concerns. The ERT in this decision held that the risk to human health and safety was unacceptable. A portion of the decision is provided below (paragraphs 15-20) pertaining to the turbines impairing safe air travel. The full decision of the ERT can be found by clicking the links on this page.
In this important ruling issued by Massachusetts Superior Court Judge Cornelius J. Moriarty II, the court ordered that the decision of the Falmouth MA Zoning Board of Appeals be affirmed to the extent that the operation of Wind 1 and Wind 2 constitute a nuisance and that the Town of Falmouth cease and desist operation of the wind turbines immediately. The full order can be accessed by clicking the document icon located on this page.
In this important ruling by the U.S. District Court for the District of Oregon, the court vacated the Secretary of the Interior’s approval of the proposed Steens Mountain wind project which would have sited up to 69 turbines and a 230 kv transmission line in area critical for sage grouse. The order is provided below and can also be accessed by clicking the links on this page.
Two leading bird conservation groups, American Bird Conservancy (ABC) and Black Swamp Bird Observatory (BSBO), have filed a lawsuit against the Ohio Air National Guard (ANG) over its plans to build and operate a wind turbine at its Camp Perry facility. Located in Port Clinton, Ohio, on the shore of Lake Erie, Camp Perry lies in a major bird migration corridor, close to numerous Bald Eagle nests, and is likely to kill species protected under the Endangered Species Act such as Kirtland's Warbler and Piping Plover. The complaint can be accessed by clicking the links on this page. A portion of the complaint is provided below.
This brief, filed before the Ohio Court of Common Pleas in Franklin County, Ohio, responds to Iberdrola's (Avangrid Renewables) action to stop any public disclose of bird/bat mortality data at its Blue Creek wind facility. Iberdrola has argued that the number of birds and bats killed by its turbines is a “trade secret” protected under Ohio law. The introduction and summary of arguments for why Iberdrola's claims are not supported by Ohio law are provided below. The full brief can be accessed by clicking the links on this page. The original complaint can be found here.
Atlantic Wind (aka Iberdrola) filed a complaint on September 26, 2016 (amended on November 7, 2016) before the Pennsylvania Carbon County Court of Common Pleas arguing that the venue to hear its Bethlehem Watershed wind turbine proposal was unsafe and that the location should be changed and an independent hearing officer appointed. Atlantic Wind alleged that threats of violence by the public impacted the company's ability to receive a fair hearing before the Township zoning board. Atlantic Wind also requested an injunction barring the zoning board from holding further hearings until the court could rule. In this ruling the Court of Common Pleas ruled against Atlantic Wind. The full order can be accessed by clicking the links on this page. A portion of the order is provided below.
An application prepared by Apex Clean Energy to construct and operate the Flat Rock wind facility was submitted to the Rush County Board of Zoning Appeals (the “BZA”) on March 15, 2015. The 180 MW project consisted of 95-3 MW turbines with approximately 66 turbines located in Rush County and the remaining turbines to be sited in Henry County. The Rush County BZA ultimately approved the application with the condition that the setback distance between the wind turbines and non-participating properties be 2,300 feet. The County's ordinance established a setback distance of 1,000 feet. Apex filed a petition before the Rush County Superior Court for judicial review of the BZA’s decision. On May 27, 2016, a judge issued findings of fact and conclusions of law that upheld the BZA’s approval with the 2,300-foot setback provision. Apex appealed the decision to the Indiana Court of Appeals. The decision by the Appeals Count was in favor of Rush County. The full decision can be accessed by clicking the links on the page. A portion of the decision is provided below.
The attached communications between the Bureau of Land Management (BLM) and Iberdrola/Tule Wind detail the BLM's notice to suspend construction of the 186 MW wind project due to repeated violations of the right-of-way permit issued by the BLM. The Tule facility initiated construction on December 6, 2016. The notice to stop construction was issued on January 20, 2017. Construction has now resumed. Both the notice to suspend construction and to resume construction, which includes Iberdrola's response to the BLM, can be accessed by selecting the document links on this page, A portion of BLM's notice is provided below.
This important decision by the U.S. District Court of the Southern District in California found that the Department of Energy failed to follow NEPA when it issued a permit to construct a transmission line that crossed over from Mexico into the United States. The Court order that since the U.S. portion of the Line and the Mexican portion of the Line were literally "two links of a single chain" connecting the Substation to the ESJ Wind Farm, the DOE was required to consider the impacts of the project on Mexico. Portions of the decision are shown below. The full report can be accessed by clicking the document link on this page.
On January 14, 2016, Dan's Mountain Wind Force LLC filed an application for Certificate of Public Convenience and Necessity (CPCN) with the Maryland PSC to construct a 59.9 megawatt wind energy facility in Allegany County Maryland. The application to the PSC came after the company could not obtain a permit though the County's permitting process and after they asked for and received an exemption from the state for a CPCN back in 2008. Dan's Mountain returned to the PSC in an effort to go around the County's denials. Following an adjudicative hearing, this order was issued by the PSC denying the project. The Findings and Conclusions by Terry J. Romine, the Chief Public Utility Law Judge for the Maryland PSC, can be found below. The full order can be accessed by clicking the document icon on this page.
Public Utility Law Judge Dennis H. Sober of the Maryland Public Service Commission, has denied a permit for Apex Clean Energy, Inc to construct the Mills Branch Solar project proposed for Kent County Maryland. The project was expected to have a nameplate capacity of 60 MW spread across 330 acres of Maryland farmland. The project was opposed by the Kent County board of Commissioners and residents in the area. Apex previously tried to site a wind energy facility in the same area on 5,000 acres but opposition to the turbines forced the company to change from wind to solar. A portion of Judge Sober's decision is provided below. The full decision can be accessed by clicking the document icon on this page.
In a 3-2 vote, the Perquimans County Board denied an application by Apex Clean Energy to erect the Timbermill wind energy facility. Timbermill, if approved, would have sited 57 turbines, each standing 599-feet tall. The order detailing the decision can be accessed by selecting the document icon on this page. The Conclusion of the order provided below.
This important white paper provides perspective on how the courts are likely to respond to wind projects that might produce significant adverse impacts on the environment. Summary considerations excerpted from the paper are provided here while the full paper is shown below and accessible from the links on this page. Important Considerations It is clear that renewable energy projects sited on or across Federally-administered lands will be carefully reviewed by Federal courts. From these cases, at least three key considerations emerge, including: Courts are generally unwilling to credit environmental analyses without actual survey data, especially where sensitive species or sensitive areas are present; The use of mitigation measures to mask an apparent lack of baseline data does not appear to be a defensible position; and Careful and consistent managing of the administrative record is key to surviving a legal challenge to a project.
In regards to the request for a judicial review filed by Apex, Judge Bailey of Greensburg entered his judgment on June 1, 2016 affirming the Rush County Board of Zoning Appeals July 1, 2015 decision, with the Setback Condition. If no appeal is filed, the judicial review will conclude. A brief summary of the ruling can be found below. The order issued by the judge can be accessed by clicking the link(s) on this page.