A Deal Is A Deal: Ecogen Wind Prevails In Windfarming Dispute

The New York Law Journal reported on January 2, 2014 that the Town of Prattsburgh, which, during the relevant time, had virtually no laws, codes or requirements on the books governing the installation of wind turbine facilities, was not permitted by the court to retroactively preclude Ecogen Wind from building a wind farm in Steuben County, New York.

In a unanimous Memorandum and Order issued by the Appellate Division, Fourth Department on December 27, 2013, in Ecogen v. Town of PrattsburghCA 12-02307 (4th Dept. December 27, 2013) the court applied traditional contract jurisprudence to prevent the Town of Prattsburgh from voiding the terms of a settlement of prior litigation with Ecogen Wind that permitted the wind farm development to proceed.

The court held that the “parties were bound by the terms of the settlement and the court was bound to enforce it.” In March 2009, Ecogen Wind was advised in writing by the Code Enforcement Officer for the Town of Prattsburgh that there was no legal impediment to building wind turbines within the municipality and that no permits were needed.

According to the Ecogen website, the company:

….. proposes to construct 34 ± wind turbine units for the purpose of generating 79.5 megawatts, or less, of electricity in the Town of Prattsburgh, Steuben County and the Town of Italy, Yates County, New York. An overall study area of approximately 24,000 acres was identified within which the individual sites for the turbine units will be selected.

Early on, Ecogen submitted an application to the Steuben County Industrial Development Agency ("SCIDA") for financial assistance relative to the proposed project.

In its role as lead agency, SCIDA initiated the environmental review process pursuant to the State Environmental Quality Review Act (6 NYCRR Part 617) and performed a coordinated review with other involved or interested agencies.  SCIDA issued a Positive Declaration, requiring preparation of an Environmental Impact Statement In accordance with 6 NYCRR Part 617. A Generic Environmental Impact Statement was selected as an appropriate means to assess potential impacts for the project.

Despite there being no applicable zoning law or building code provision, Ecogen Wind still sought formal town approval in an effort to accommodate local concerns about the project.  But Ecogen, which had the necessary state permits to proceed, was unable to reach agreement with the town and commenced an Article 78 action. The parties settled the case in late 2009 acknowledging that “no rules, permits or other authorizations from the town are required… to develop, construct and operate the project.”

Shortly thereafter, a new town board came into office that was unhappy with the deal struck by its predecessors. The new board repudiated the agreement, rescinded the settlement and imposed a moratorium on windfarming. As reflected by the Appellate Division’s decision, a municipality cannot have second thoughts and renege on the agreement once a settlement is reached.

Although it is difficult to gauge the intensity of the debate over the project without living in upstate New York and participating first hand, it may be inferred from a review of the website of Advocates for Prattsburgh that tensions were high among townspeople when the new town board came into office and sought to rescind the deal.

In its Mission Statement, Advocates for Prattsburgh makes an impassioned plea to support the opposition effort:  

Located in northern Steuben County and nestled between Keuka and Canandaigua Lakes, Prattsburgh, NY is an idyllic township of hills, woods and farms. Advocates for Prattsburgh is a not-for-profit, volunteer organization run and financially supported by and offering a voice to resident and non-resident Prattsburgh landowners, as well as concerned citizens in the surrounding towns. Two wind farm companies – Ecogen and UPC – plan to construct nearly one hundred, 400′ high wind turbines in Prattsburgh, interspersed between the homes and properties of non-participating landowners. The noise, negative health effects, ice throws and overwhelming visual dominance of these huge industrial machines pose a severe threat to our town, the value of our property, our personal safety, and our freedom to live our lives in peace and quiet. Recent action by the Prattsburgh Town Board to use eminent domain to condemn the land of property owners who refused to grant easements to UPC for the Windfarm Prattsburgh Project should be a wake-up call for what is planned for our future and our freedoms.

Our position is not against wind power, but against the inappropriate siting of these industrial wind turbines. These massive, 400′ high factories should be placed in an industrial park, in which all the property within its boundaries is contiguous and is either owned by, leased to, or easements voluntarily granted to the wind power companies. The siting of these turbines within this industrial park should also be set back from the properties lines of non-participating landowners sufficient to protect the personal health and safety of property owners, the value of their homes, and their desire not to be dominated by noise-making adjacent factories as tall as the pyramids of Egypt.

Public concerns over these potential environmental impacts, both real and imagined, represent the biggest challenge the wind industry faces in siting these projects.  A map of the project (as depicted by the Advocates for Prattsburgh) is attached.



Balancing The Rights Of Landowners, Wind Power Developers And Mineral Rights Owners

It is the dream of many landowners in the United States to one day have both oil wells and wind turbines on their land. For this happen, however, landowners must play an active role in keeping oil and wind companies from trying to overreach each other in concurrent development of the land.

In their excellent article published by the University of Denver Sturm College of Law titled, “Jousting at Windmills: When Wind Power Development Collides with Oil, Gas, and Mineral Development,” authors K.K. DuVivier and Roderick E. Wetsel suggest that landowners will have to act as referees in an energy “Super Bowl” if they are to be successful in having concurrent wind and oil development on a single piece of property.

As DuVivier and Wetsel discuss, the spread of wind farming across mineral-producing states has raised concerns among mineral rights owners because of the large swaths of land needed for wind development. Today’s turbines, like those produced by General Electric, rise to a height of 262 feet at their hub and have a rotor radius of approximately 125 feet. Although the surface footprint of each turbine is relatively modest in relation to its height, wind development requires more extensive surface use than traditional oil and gas development due to: (1) turbine spacing; (2) buffer zones; (3) other surface uses such as roads, substations, operations and maintenance facilities, and laydown yards; and (4) overhead and underground transmission, collection and distribution lines.

Significantly, the turbines are linked by a spiderweb of underground and overhead transmission, collection and distribution lines. Although these lines may take up little surface space, they may interfere with concurrent use of the same land for oil, gas or mineral exploration and development.

Although there is a well developed common law concerning whose rights are superior to whom in any given situation, a landowner is much better off altering these common law approaches by making express agreements with wind project developers and prospective mineral estate lessees. If the landowner, as grantor, can negotiate clauses in the lease agreements that put pressure on lessees to work together, it may eliminate some of the battles that can occur between wind and mineral developers in the absence of clear contractual terms.

Over the years, mineral companies have come into conflict with surface owners and other lessees such as farmers, ranchers and hunters. These conflicts are due primarily to the conflict rising from the severance of the surface estate from the mineral estate such that surface owners frequently do not own the minerals underneath their own property. Although the mineral lessee may interfere with a landowner’s ranching or farming operation, many courts view it as unreasonable to allow the mineral estate owner to give way to grazing animals and not be allowed to develop the underlying minerals, i.e., by not drilling wells, building roads, powerlines, flowlines and tank batteries.

Unfortunately for the surface owner, the laws of certain states, such as Texas, require the landowner to provide the mineral lessee a large measure of deference to permit the development of mineral resources.

Are Environmentalists Who Oppose Wind Farms Environmentalists?

Wind power can help address the nation’s compelling demand for electric power without increasing greenhouse gas emissions or enlarging our carbon footprint. Environmental activists, who are critical of the use of fossil fuels due to their perceived negative impact on the environment, are generally supportive of developing wind power as an alternative energy source. Wind is renewable, sustainable and non-polluting.

Why is it then that environmental groups sometimes oppose the development of wind power in the courtroom? From a global or even regional perspective, environmentalists should be rallying behind wind power, not opposing.

The short answer is that any commercial-scale, land-based development project within the United States is likely to involve a matrix of regulatory and environmental issues that arise during the siting process. Wind farm siting often involves addressing issues concerning aesthetics, noise and wildlife impacts. In many instances, environmental groups have joined local activists and Nimbies in opposing a wind power development.

A more responsible role for an environmental group, which should recognize the benefits of wind power, should be to mediate siting disputes rather than oppose development. From the environmentalist’s perspective, the more available wind power to generate electricity the better.

Many of the so-called environmental groups that oppose wind power are actually not environmentalists at all, but single purpose organizations whose sole object is to oppose wind development. Most environmental groups have an agenda that balances the pros and cons of various types of energy. However, these single purpose groups do not advocate in favor of anything.

For example, Friends of Maine’s Mountains claim to be dedicated toward working to “foster a civil and fact-based debate with the goal of exposing the true costs of mountain-based industrial wind development in Maine.” This group seeks donations to further its work in “shaping a sound, scientific and economics-based energy policy for the State of Maine.” However, a review of its website demonstrates that it offers neither constructive energy policies nor recommendations for keeping Maine on the energy grid. Rather, it is a NIMBY group that advocates the view that any public or governmental support for wind power is misplaced.

In Friends of Maine’s Mountains v. Board of Environmental Protection, 61 A.3d 689 (Me. 2013), Friends of Maine’s Mountains, along with other environmental groups, opposed the approval of a wind energy project near a lake and multiple homes. The Maine Department of Environmental Protection (“DEP”) set the appropriate nighttime noise level and refused to treat Webb Lake, which is located near the project, as a “scenic resource of national resource.”

The Board of Environmental Protection (“BEP”) upheld DEP’s approval of the wind energy project. However, in doing so, BEP agreed to a higher noise threshold than what it had previously agreed to for wind projects generally. Plaintiffs brought suit to block the plan, claiming that BEP abused its discretion and violated the Maine Constitution.

On appeal, the court agreed that BEP had abused its discretion by approving the higher noise threshold. On the basis of this determination, the case was remanded for further consideration of the appropriate nighttime decibel level.  However, the decision represents a considerable setback for Friends of Maine’s Mountains (and other neo-environmentalists) despite the remand on the noise level issue.

The Supreme Judicial Court rejected plaintiffs’ constitutional arguments that: (1) the Maine Wind Energy Act denied plaintiffs equal protection by denying protection for lakes listed among “Maine’s Finest Lakes”; (2) the Wind Energy Act violated the separation of powers clause of the Maine Constitution; and (3) DEP and BEP denied plaintiffs’ due process rights because of demonstrated bias. The court  also rejected  plaintiffs’ argument that Webb Lake, despite its natural beauty, was deserving of protective “scenic resource” status. The Court determined that legislative action, not administrative orders, determines what lakes in Maine are protected as “scenic resources.”

In addition, the court flatly rejected plaintiffs’ argument that the Wind Energy Act’s criteria for assessing visual impact are overly vague and therefore violative of the Separation of Powers Clause. The criteria in dispute were the six factors that the Board considers when making its determination regarding a wind energy project’s impact on scenic resources.

The court held that a statute is not constitutional merely due to difficult application. For example, in an earlier case, the court grappled with the difficulty of defining an “annoying” dog bark. As difficult as it is to judicially determine when and under what circumstances a bark becomes an annoyance, this criterion was upheld as constitutional.

Maine’s Legislature enacted the Wind Energy Act as a means to promote wind as a renewable energy source and streamline the permitting process for wind energy. Despite the opposition of the NIMBY groups like Friends of Maine’s Mountains, the Supreme Judicial Court had previously held that the “state interest in facilitating the rapid development alternative, renewable energy resources” is a legitimate interest that rationally relates to provisions in the Wind Energy Act.

There is a constructive role for environmental activists to play in the wind power siting discussions, but single-minded opposition to the expanded use of wind power as an energy source is misplaced. These so-called “environmentalists” would better serve their stakeholders by engaging in constructive discussion rather than running to the courthouse.