The fate of a nuisance case against an Oklahoma wind farm is up to a federal judge after a hearing Tuesday in Oklahoma City.
More than 60 members of the Oklahoma Wind Action Association showed up for the hearing before U.S. District Judge Timothy D. DeGiusti on a motion by Kingfisher Wind LLC to issue a summary judgment in the case.
After the two-hour hearing, DeGiusti said he will rule at a later date. If he declines to grant the wind company’s motion, the case will proceed to a bench trial.
“We’re anxious to hear what the judge has to say,” Terra Walker, one of the plaintiffs in the case, said after the hearing.
The Oklahoma Wind Action Association and seven residents in Canadian and Kingfisher counties filed the anticipatory nuisance complaint in 2014, before the Kingfisher wind farm started construction. The 149-turbine project started some operations last year, and became fully operational in March.
Citing complaints over noise, shadow flicker and other concerns, the landowners want turbines in the development to be at least two miles (10,560 feet) from their homes.
Attorneys for Kingfisher Wind, a unit of Apex Clean Energy Inc., said experts hired by the landowners failed to provide medical evidence that the turbines were causing “serious injury or the reasonable probability of severe injury.”
“We certainly understand there is a group of people in this community that don’t like this project, but that doesn’t mean there’s an injury,” said attorney Todd Woolery.
If DeGiusti allows the case to go to trial and ultimately rules against the wind farm, turbines within a certain distance of homes may have to be demolished. Woolery said that would be a high burden to meet for a project that is currently operating legally. He said many members of the association were opposed to the wind project for aesthetic reasons or out of fear of declining property values.
“They are not sufficient reasons to warrant a permanent injunction tearing down a lawful business,” said Woolery, who noted all the turbines are on private land leased by the wind developers.
None of the plaintiff’s homes are within a 1,500-foot setback recommended by the turbine manufacturer. The homes are between 2,000 feet and 10,385 feet from the nearest wind turbine.
‘Jumped the gun’
Jason Aamodt, an attorney for the plaintiff landowners and the association, said when it was filed in 2014, the lawsuit sought to preserve the status quo. He said Kingfisher Wind “jumped the gun” when it began construction on the $450 million project while there was a civil complaint pending.
“Members of OWAA invested more than that in their homes and property before the wind farm got there,” Aamodt said. “They (Kingfisher Wind) caused their own harm by moving forward when it was known it could be enjoined.”
Aamodt said that two experts, radiologist Michael Nissenbaum and acoustical engineer Richard James, have provided reports on the health and nuisance effects of industrial wind turbines.
The report provided by James concluded that infrasound, the low-frequency sound that typically isn’t perceptible to the human ear, could affect nearby residents.
“Infrasound isn’t what you hear, it’s what you feel. It’s impulsive,” Aamodt said. “The sweep of those blades creates infrasound.”
Aamodt said Kingfisher Wind developers prepared project maps for audible sound, but not infrasound. They also prepared a map on the potential for shadow flicker, the strobe-like effect from turbine blades during some parts of sunny days.
“Imagine a 5-year-old taking control of the light switch and turning it on and off,” Aamodt said of shadow flicker. “That makes it impossible to use your own home. The proof of where it will occur is on the defendant’s own map.”
Serious health claims?
In rebuttal, Woolery conceded the developers prepared sound modeling and shadow flicker maps, but he said the plaintiffs haven’t provided experts to testify that those issues were causing serious health concerns. He faulted Nissenbaum and James for not pursuing additional studies on the health effects of wind farms already in operation near the Kingfisher development.
“This is about causation, and they don’t have it,” Woolery said of linking the turbines to specific medical conditions.
In a separate motion, attorneys for both sides presented arguments on whether the Oklahoma Wind Action Association had sufficient legal standing to bring a private, anticipatory nuisance claim on behalf of its 380 members.
The Kingfisher wind farm is owned by First Reserve Corp. Apex developed the project and operates it for First Reserve. The electricity is sold to Morgan Stanley Capital Group Inc., which has an agreement to resell it to Gulf Power Co., a Florida utility.
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