Resource Documents: Filings (97 items)
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Kohmetscher v. Nextera
Author: Kohmetscher, Kevin; Healy, David; and McGuire, Myles
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Plaintiff, Kevin Kohmetscher, brings this Class Action Complaint & Demand for Jury Trial against Defendant, NextEra Energy, Inc. (“NextEra” or “Defendant”), to stop Defendant from operating wind turbines near residential communities in a way that causes a nuisance and interferes with homeowners’ use and enjoyment of their property. Plaintiff alleges as follows based on personal knowledge as to himself and his own acts and experiences …
NATURE OF THE ACTION
1. Defendant is one of the largest electric utility companies in the country, and the largest generator of wind energy in the world.
2. To generate wind energy, Defendant has constructed numerous “wind farms” across the United States. A wind farm is an array of wind turbines. Each turbine sits high in the air atop a tower and consists of a large rotor with three blades that spin as wind passes over the blades. Defendant’s wind farms often consist of dozens of turbines and stretch for miles across open terrain.
3. Although wind farms can supply renewable energy, they can also pose a number of hazards when built too close to homes and residential communities.
4. For instance, a turbine’s spinning blades create flickering shadows that pass over nearby land. For those in the path of a wind turbine’s shadows, the “shadow flicker” effect is similar to a constant strobe light. Those who experience prolonged shadow flicker often complain of severe headaches, nausea, difficulty concentrating, and in some cases seizures.
5. Turbines are also very noisy. The spinning blades create a deep thumping noise that sounds similar to a distant helicopter or train. This constant sound can travel for miles depending on weather conditions, and results in a decreased quality of life for those within a certain radius of the wind turbines due to stress, loss of sleep, and anxiety.
6. Rather than constructing its wind farms away from residential areas to prevent interfering with homeowners’ use and enjoyment of their land, Defendant has instead sited many of its wind farms in the middle of farm fields, near houses, and next to important roads.
7. Although Defendant’s chosen wind farm locations may be optimal for wind energy generation, the turbines’ proximity to residential areas can be devastating to those living in the surrounding community. The turbines drive people from their homes due to the unreasonable inconvenience, interference, annoyance, and adverse health effects caused by the turbines. Wind farms also destroy the scenic beauty of rural areas, cluttering the horizon with conspicuous towers and spinning blades.
8. Those who attempt to sell their homes and move away from Defendant’s wind farms are often unable to do so because the value of land near turbines plummets.
9. Accordingly, Plaintiff brings this action on his own behalf and on behalf of similarly situated individuals to obtain redress and injunctive relief for those who have suffered harm as a result of Defendant’s substantial and unreasonable interference with their use and enjoyment of their property.
10. On his own behalf and on behalf of a proposed class defined below, Plaintiff seeks an award of damages compensating him and the putative class members for the negative effects that Defendant’s turbines have had on their health and well-being, use and enjoyment of their property, and diminution in value of their property due to Defendant’s turbines. Plaintiff also seeks a permanent injunction barring Defendant from continuing to unreasonably interfere with his and the putative class members’ use and enjoyment of their property.
ALLEGATIONS OF FACT COMMON TO ALL COUNTS
Background
16. Wind energy is produced through the use of wind turbines. Turbines generally consist of three spinning blades connected to a rotor and a generator that sit atop a tower. As wind passes over the blades, the blades rotate and spin the generator to convert the wind’s kinetic energy into electrical energy.
17. Towers range in size up to 500 feet high, and blades can be more than 260 feet long. Due to their size, wind turbine towers require a large foundation to stay upright. Turbines are generally painted white to make them visible to aircraft.
18. When used to generate energy for commercial applications, large numbers of wind turbines are grouped together for efficiency in arrays known as wind farms.
19. Wind farms require use and control of extensive land area in order to optimize the spacing between turbines and minimize turbulence at downwind turbines.
20. Wind farms are typically sited in wide-open, rural areas. As such, the turbines often disrupt the natural scenic beauty of the land where they are placed. Wind farms also pose a risk of mortality to migratory birds whose flight paths pass through wind farms.
21. Many industrial wind turbine manufacturers recommend that turbines be at least 1,500 feet from any residence—a minimum setback—to provide a safety zone in the event of catastrophic failure (e.g. a blade breaks and flies off, or the turbine flings shards of ice that have accumulated along the blades during winter).
22. As a result, there is typically a “no-build” zone in a 1,500 feet radius surrounding any turbine. In many instances, however, this “no-build” zone overlaps with the property of landowners.
23. More importantly, wind turbines often interfere with residents’ use and enjoyment of their property even where they live beyond the recommended minimum setback.
24. For instance, the rotation of turbine blades causes a rhythmic flickering of sunlight, commonly called “shadow flicker.”
25. Shadow flicker can be especially noticeable in the mornings and evenings, when the sun appears close to the horizon. During such times, turbine blades can cast intermittent shadows that completely obscure sunlight each time a blade passes in front of the sun, causing a strobe-like effect. Shadow flicker can be an issue both indoors and outdoors when the sun is low in the sky.
26. Prolonged exposure to the strobe-like effect of shadow flicker is not only distracting and annoying, it also causes headaches, nausea, and has been reported to cause seizures in certain individuals.
27. Wind turbines can also be very noisy, exceeding prescribed decibel limits in many residential areas.
28. In addition to the noise made by the mechanical equipment inside turbine towers, turbines also cause aerodynamic noise. Aerodynamic noise is created by wind passing over the blades of a wind turbine. The tip of a 40-50 meter blade can travel at speeds of over 140 miles per hour under normal operating conditions. As the wind passes over the moving blade, the blade interrupts the laminar flow of air, causing turbulence and noise. Although current blade designs attempt to minimize the amount of turbulence and noise caused by wind, it is not possible to completely eliminate turbulence or noise from turbines.
29. Those who live near wind turbines have described the noise that turbines make as a rhythmical beating that sounds like “like a train that never gets there,” a “distant helicopter,” “thumping,” “thudding,” “pulsating,” and “beating.”
30. In addition to this audible thumping, turbines also emit inaudible low frequency sound waves known as infrasound. Although these sound waves are below the range of sound audible to humans, prolonged exposure can disturb sleep and impair mental health. Infrasound has been linked to increased instances of insomnia, stress, stroke, heart failure, immune system problems, dizziness, vertigo, nausea, ringing in the ears, breathing problems, abdominal and chest pain, urinary problems, effects on speech, and headaches. Further, high noise environments negatively impact learning in young children, making it hard to concentrate and communicate with others.
31. Health effects related to noise emissions from wind turbines have been observed in individuals living up to three miles from turbines, with the effects being greatest for those within one mile.
32. Individuals who live near Defendant’s wind farms usually decide to move away from the farms shortly after their installation due to the various ways that turbines interfere with their use and enjoyment of their property, including issues stemming from shadow flicker, noise emissions, and related health issues. However, many who reside near Defendant’s wind farms are unable to move due to the financial strain caused by the decreased value of their property and the inability to find a buyer willing to live near a wind farm.
Facts Specific to Plaintiff
33. Plaintiff owns a plot of land located at 2034 Rd. 1900, Blue Hill, Webster County, Nebraska. Plaintiff’s plot is approximately 11 acres in size, and Plaintiff currently resides in a single-family dwelling located on his land.
34. Plaintiff’s plot has been in his family for decades. Plaintiff grew up on his land, and he purchased it from his father.
35. Plaintiff’s property is adjacent to the Cottonwood Wind Farm, a wind turbine farm owned and operated by Defendant. Defendant began constructing the Cottonwood Wind Farm in or about mid 2017, and the turbines began commercial operation in or about November 2017.
36. The Cottonwood Wind Farm is miles-long and consists of more than 40 wind turbines built and maintained by Defendant.
37. The rear of Plaintiff’s residence faces the Cottonwood Wind Farm. In relation to Plaintiff’s property, the turbines are located to the east, south, and west of Plaintiff’s residence. The nearest turbine is located approximately 1,300 feet from Plaintiff’s property line.
38. Since the turbines near Plaintiff’s property began operating, the turbines have negatively affected, invaded upon, and interfered with the Plaintiff’s use and enjoyment of his property by:
a. creating sustained, incessant, cyclical, and highly disturbing and annoying audible noise created by and emitted from the turbines, often described as sounding like an airplane flying overhead that never flies away;
b. creating vibrations or amplitude modulation of sound pressures or a pulse sensation when the rotating blades of the turbines pass by the turbine pedestal;
c. creating a shadow flicker/strobe light effect that often covers all of Plaintiff’s property and intrudes into Plaintiff’s home when the rotating blades of the turbines pass in front of the sun;
d. disrupting and/or preventing Plaintiffs’ ability to entertain guests or relatives, who are unable to visit for extended periods of time due to headaches and sleep disruption caused by the turbines;
e. creating highly visible glare or glint which emanates from the turbines when they reflect sunlight;
f. disrupting and obscuring Plaintiff’s views and vistas with turning blades, where such vistas were previously unobstructed;
g. preventing Plaintiff from enjoying normal outdoor family activities on his property such as barbeques, and other recreational activities;
h. Preventing Plaintiff from keeping his windows open due to persistent noise.
39. As a direct and proximate result of Defendant’s ongoing interference with Plaintiff’s use and enjoyment of his property, Plaintiff has suffered and continues to suffer:
a. an inability to sleep, repeated awakening during sleep, and sleep deprivation;
b. headaches;
c. vertigo and/or dizziness;
d. nausea;
e. stress and tension;
f. fatigue;
g. and anxiety and emotional distress.
40. The Cottonwood Wind Farm and the impact it has had on Plaintiff’s property has thus substantially and unreasonably interfered with Plaintiff’s use and enjoyment of his property. On information and belief, Plaintiff’s property has decreased and will continue to decrease in value due to its proximity to Defendant’s wind turbines, and Plaintiff will be unable to lease or sell his property for its fair market value prior to installation of the turbines.
COUNT I: Private Nuisance …
COUNT II: Negligence …
Dated: March 1, 2019
Download original document: “Kohmetscher v. Nextera”
Brief of Fox Islands Wind Neighbors, Vinalhaven, Maine
Author: Fox Islands Wind Neighbors
It is a sad spectacle for the citizens of the State of Maine (and more than that for the Fox Islands Wind Neighbors, the “Neighbors”) to see the Department of Environmental Protection (the “DEP”), the state agency charged with the responsibility to protect us from environmental harm, align itself with Fox Islands Wind, LLC (“FIW”) to grant a de facto exemption from the Noise Rule and then responding in court with claims that it has the absolute right to do so without judicial oversight. It is even worse that the Commissioner responsible for this was in a highly compromised position, having been employed as an industry lobbyist for the very same law firm asking for such special treatment weeks before she issued the Condition Compliance Order (the “CCO”) at issue in this appeal.
FACTUAL BACKGROUND
A. Issues about Excessive Noise in Connection with the Licensing of the Project.
B. Noise Complaints Following Commencement of Operations.
C. DEP’s Finding of Non-Compliance and FIW’s Refusal to Cooperate.
D. Events Leading to the Challenged Condition Compliance Order.
ARGUMENT
I. The Superior Court correctly ruled that it had jurisdiction over the petition for review and that the neighbors have standing.
II. The Superior Court correctly ruled that the CCO is unlawful.
III. The Superior Court erred by dismissing the neighbors’ First Amendment retaliation claim.
CONCLUSION
For the reasons stated above, the Neighbors respectfully request this Court to affirm the decision of the Superior Court that the CCO is invalid as a product of arbitrary and capricious action, without substantial evidence to support it, and an abuse of discretion and hold that the Neighbors have established a valid First Amendment retaliation claim under Rule 80C, with allowance for an award of attorney’s fees or, in the alternative, that they have set forth a plausible claim under Section 1983 of First Amendment retaliation that may proceed on as an independent claim. The Neighbors further request that the matter be remanded back to the Superior Court so that the matter can be remanded to the DEP with detailed instructions on the parameters of a valid CCO.
Dated: August 5, 2014
Rufus E. Brown, Esq.
BROWN & BURKE
Portland, ME
Attorney for the Fox Islands Wind Neighbors and the Individual Petitioners
Download original document: “Brief of Fox Islands Wind Neighbors”
Fox Islands Wind Neighbors v. Maine DEP
Author: Fox Islands Wind Neighbors
In this case residents living near the wind energy project (the “Project”) of Fox Islands Wind (“FIW”) on Vinalhaven and an organization they formed to protect their respective interests, Fox Islands Wind Neighbors (“FIWN”), challenge the Condition Compliance Order issued by the Department of Environmental Protection (the “DEP”) on June 30, 2011, Department of Environmental Protection (“DEP”) Administrative Record, as revised April 20, 2012 (“AR”), 142, Petitioners’ Rule SOC Brief Appendix (“Pet. App.”) 124, following earlier findings by the DEP on November 23, 2010, AR 46, Pet. App. 59, that FIW was not operating in compliance with 06-096 CMR 375 §10 (the “Noise Rule”), AR 143, Pet. App. 133, as required by statute, 35-A M.R.S.A. §3456.1.A, and its operating license issued on June 5, 2009 (the “License”). AR 3, Pet. App. 10.
SUMMARY OF THE ARGUMENT
A core issue this case raises is whether the Commissioner of the DEP may lawfully deny citizens of this State protection from exposure to excessive noise from a wind project licensed by the DEP. The Wind Energy Act, P.L. 2007, Ch. 661 enacted legislation that included the requirement for certification of small-scale wind energy projects. 35-A M.R.S.A. §3456.1. The statute requires small-scale projects to comply with the Noise Rule to the same extent as grid-scale projects.
In the pages that follow we will show that both the DEP and FIW knew from the outset that it was likely that the Project would exceed the applicable 45 dBA nighttime noise limits required by the Noise Rule whenever there is significant vertical and directional wind shear. Once the Project began operations in the Fall of 2009, adjoining residents immediately complained about the extent of the noise. After multiple complaints were filed by Petitioners over the next several months, the DEP’s noise consultant finally concluded in September 2010 that the very conditions flagged in the application caused the Project to exceed the applicable noise limits. FIW belligerently refused to acknowledge non-compliance and refused to provide operational, sound and meteorological data requested by the DEP so that it could design corrective action to assure the Project would operate lawfully in the future. FIW’s combative posture led the DEP to issue a formal Determination of Non-Compliance on November 23,2010, finding that the Project was operating in violation of the Noise Rule based on a complaint made for the evening of July 17-18, 2010. It further ruled that the Project was likely to exceed the applicable sound limits whenever there is significant vertical and directional wind shear, regardless of wind direction. Based on these findings, the Determination of Non-Compliance mandated that FIW take corrective action.
As a standoff between the DEP professional staff and FIW developed on what corrections should be made to operations and reporting to account for the non-compliance of the Project, FIW seized on the opportunity presented by the election of a Governor, with known hostilities to environmental regulations, to launch a political campaign to force the professional DEP staff to back away from its regulatory demands for effective corrective action. Eventually, Acting Commissioner Aho terminated the efforts of her professional staff and the DEP’s consultant to draft new protocols that would adequately address the wind shear issues plaguing this Project. … Instead she gave FIW free reign to design the framework of noise regulation going forward in the Condition Compliance Order.
Based on this record, as further described below, Petitioners will show that the Condition Compliance Order itself is unlawful because it exceeds the authority of the DEP to allow a small-scale wind project to operate in violation of the Noise Rule. Petitioners will also show that the protocols adopted in that Order have the practical effect of exempting the Project from regulation and are unlawful for that reason. Finally, Petitioners will show that such protocols are also the product ofan arbitrary and capricious decisionmaking and an abuse of discretion. Finally, we will demonstrate that the Condition Compliance Order is unlawful as the product of political bias, and violated rights of the Petitioners protected by the First Amendment and the Equal Protection Clause.
Download original document: “Fox Islands Wind Neighbors v. Maine DEP: Petitioners’ Rule 80C Brief”
Comments on NEPA review for Beech Ridge wind energy project
Author: Webb, Rick
Ms. Laura Hill, Assistant Field Supervisor, U.S. Fish and Wildlife Service, West Virginia Field Office
September 21, 2010
RE: Preparation of an Environmental Impact Statement for Issuance of an Incidental Take Permit and Associated Habitat Conservation Plan for the Invenergy Beech Ridge Wind Energy Project, Greenbrier and Nicholas Counties, WV
Dear Ms. Hill:
I appreciate the opportunity to comment on the content of National Environmental Policy Act (NEPA) review related to the Invenergy Beech Ridge Wind Energy Project.
The U.S. Fish and Wildlife Service (USFWS) NEPA review process provides perhaps the first opportunity for objective and rigorous analysis of the costs and benefits associated with utility-scale ridgeline wind energy development in the central Appalachian region. I was a committee member and co-author of the National Resource Council (NRC) 2007 report, Environmental Impacts of Wind Energy Projects, which focused on the Mid-Atlantic Highlands (www.nap.edu/catalog.php?record_id=11935) . I am thus well aware of the limitations of current information, analysis, and regulatory review, and I am deeply concerned about the potential for significant environmental impacts associated with this type of development in this region.
Although a long list of issues and recommendations can and should be compiled related to the Beech Ridge project, my comments here focus on two broadly encompassing issues, evaluation of cumulative impacts and evaluation of benefits. These issues apply to USFWS decisions concerning the individual project and to the consequences of the precedent that will be established for wind energy development in the region.
Evaluation of Cumulative Impacts
As evidenced by multiple letters concerning wind energy projects, the USFWS is fully aware of the need to address the cumulative environmental impacts of wind energy development in the central Appalachian region. These letters, several of which are provided here as attachments, express concerns about cumulative regional impacts associated with direct harm to bats and birds, including endangered and protected species, as well as general habitat degradation due to forest fragmentation resulting from construction of turbines, roads, and transmission corridors.
The 2007 NRC report took a step toward quantifying potential turbine-caused bat and bird mortality associated with central Appalachian region (mountain areas of MD, PA, WV, and VA) wind energy development based both on (1) the record of bird and bat mortality at existing wind projects in the region and (2) on projected additional wind project development in the region.
The NRC committee found (based on projections for development and on projects listed in the grid interconnection queue):
- The number of bats killed per year will be 33, 017 to 119,665.
- The number of birds killed per year will be 5,895 to 44,999.
- There is insufficient information to assess potential population impacts on birds.
- The potential for impacts on bat populations appears significant.
- Additional impacts to wildlife will occur due to habitat alteration.
The estimates for bird and bat mortality should be viewed as conservative, as they were based on projections for future wind development that should now be recognized as low. In addition, the prognosis for sustainability of bat species is now even more dire due to the emergence of white nose syndrome.
It would be contrary to the clear intent of the Endangered Species Act, NEPA, and the mission of the USFWS to ignore the actual harm to bats, birds, and other wildlife by basing decisions about an individual project as if the impacts of that project occur in isolation from the cumulative impact of expected regional-scale development.
Evaluation of Benefits
The NEPA review process requires consideration of alternatives, including the alternative of not building a project. In the Invenergy Beech Ridge case, the USFWS must decide whether the benefits of the project outweigh the environmental costs, or more appropriately, whether the benefits of utility-scale wind energy development in the central Appalachian region outweigh the costs.
The 2007 NRC report again took a step toward this evaluation by estimating the potential benefits of wind energy development in terms electricity supply and air quality improvement.
The NRC committee found (based on U.S. Department of Energy Projections for 2020):
- Wind energy development will equal 2 to 7% of U.S. installed generation capacity, but only 1.2 to 4.5% of actual U.S. generation (less than installed capacity due to the intermittency of wind).
- Wind power development will provide no reduction in nitrogen and sulfur emissions in the eastern U.S. – because these pollutants associated with acid rain and ozone formation are regulated by emissions caps.
- Wind power development will offset emissions of carbon dioxide by 0.5 to 1.8% from the levels of emissions that would otherwise occur from energy use.
Although these findings indicate that projected wind energy development will provide only minimal benefits, it should be noted that the estimated benefits are based on national-scale analysis and projections. As indicated in the 2007 NRC report, the density of the wind resource in the Mid-Atlantic Highlands is substantially less than in most other U.S. wind-development areas, and thus the benefits will be less than for the country as a whole.
Although the 2007 NRC report indicates that benefits of wind energy development will be minimal in terms of air quality improvement, a number of recent reports have suggested that wind energy development will actually have the effect of increasing carbon emissions (e.g., //docs.wind-watch.org/BENTEK-How-Less-Became-More.pdf). The argument is made that due to the intermittency and unpredictability of wind power, especially during peak-demand periods (e.g., late-summer afternoons), the need for readily available backup power requires inefficient operation of fossil-fuel generators, and results in a net increase in carbon emissions. The validity of this argument is difficult to determine. Although wind developers may claim benefits with respect to reduced carbon emissions, they deny access to the information required for objective verification.
In the present Invenergy Beech Ridge case, the USFWS should reasonably expect Invenergy, which operates multiple wind projects in the U.S., to provide the data necessary to support any claims made concerning benefits, including reduction in carbon emissions. This is simply the level of transparency that should be required for any objective regulatory review or scientific analysis. Qualitative arguments or unverified assertions should not be accepted.
Finally, the USFWS needs to ensure that any contractors or consultants it employs to conduct the required NEPA review are fully qualified to perform the needed analysis. Moreover, all data, analysis, and models used by the contractor or USFWS in conducting the NEPA review should be made available, without exception, for public review.
I look forward to your responses to my comments.
Thank you,
Rick Webb
Download original document: “Preparation of an Environmental Impact Statement for Issuance of an Incidental Take Permit and Associated Habitat Conservation Plan for the Invenergy Beech Ridge Wind Energy Project”
[By courtesy of Allegheny Treasures]
