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Federal judge dismisses nuisance case against Kingfisher wind farm

A federal judge has dismissed an anticipatory nuisance case brought by a group of landowners worried about the noise and health effects of the Kingfisher wind farm.

U.S. District Judge Timothy D. DeGiusti said the seven landowners and the Oklahoma Wind Action Association failed to show evidence of harm in their claim for anticipatory nuisance and a permanent injunction against the development.

The lawsuit was filed in 2014, before the 149-turbine project began construction. The wind farm began some operations last year, and became fully operational in March. It is owned by First Reserve Corp. and operated by Apex Clean Energy Inc.

In his order, DeGiusti said the alleged harms over shadow flicker and infrasound presented by the group and its experts was “speculative at best.” He also said aesthetic concerns without any significant evidence of adverse health effects were not enough to constitute a nuisance.

“At this late stage of the litigation, after a full opportunity to conduct discovery and marshal evidence, the injuries cited by plaintiffs are simply too speculative to constitute harm sufficient under the anticipatory nuisance theory,” DeGiusti wrote.

The landowners and association wanted an injunction that would move turbines at least 1.72 miles (9,082 feet) from the homes of landowners who didn’t lease to Kingfisher Wind LLC. The $450 million wind farm covers 11,000 acres in Canadian and Kingfisher counties.

“In the face of plaintiffs’ speculative evidence of injury from the KWP (Kingfisher Wind Project), the enormous cost and delay associated with the relief sought by plaintiffs strongly militates against an injunction here, and compels the clear conclusion that the balance of hardships here does not tip in plaintiffs’ favor,” DeGiusti wrote.

Neither side was immediately available for comment on DeGiusti’s ruling.

Court documents show none of the landowners’ 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.

A state law passed last year says wind turbines cannot be closer than 1.5 nautical miles (9,100 feet) from a school, hospital or airport. The law, which went into effect in November, does not mention homes.

Electricity from the Kingfisher wind farm is sold to Morgan Stanley Capital Group Inc., which has an agreement to resell it to Florida utility Gulf Power Co.