A recent decision in the U.S. District Court for the Western District of Oklahoma, Terra Walker et al. v. Kingfisher Wind, LLC, No. 5:14-cv-914-D, Doc. 160 (W.D. Okla. Oct. 13, 2016), could sound a death knell for nuisance suits against wind farm operators and potentially the entire energy industry. In short, the court held that proof of a reasonable probability of injury must be established through evidence beyond mere speculation in order for such litigation to survive to trial.
In Terra Walker, the Oklahoma Wind Action Association (OWAA) and seven individual landowner plaintiffs sought to enjoin Kingfisher Wind, LLC, from the construction and then continued operation of a wind farm (the “Project”) under theories of anticipatory nuisance and anticipatory trespass. Under their anticipatory nuisance claim, the plaintiffs specifically alleged, inter alia, that the 149 turbines would cause adverse health effects, emit noise, cause “shadow flicker” and destroy the natural landscape. The plaintiffs supported these allegations with two expert opinions and sought a 1.72-mile setback of the Project from their properties.
Kingfisher successfully moved to dismiss the plaintiffs’ anticipatory trespass claim and moved for summary judgment as to the merits of the plaintiffs’ anticipatory nuisance claim.
With the plaintiffs’ evidence focusing almost entirely on adverse health effects caused by “shadow flicker” or (infra) sound from the turbines and the aesthetic annoyance caused by the Project generally, the court determined that the plaintiffs failed to make the requisite showing of likely harm – a reasonable probability that an injury would occur beyond mere speculation. Moreover, already hesitant to grant extraordinary relief in any case, the court declined to do so not only because the plaintiffs failed to demonstrate likely harm, but also because the balance of the hardships between the parties could not be viewed as favoring the plaintiffs, given the massive costs already expended in the now-operational Project. The court suggested that this was due, in part, to the plaintiffs’ related failure to request a preliminary injunction before or during construction.
This case’s outcome, which is in line with recent decisions in several other states where landowners have attempted to claim that neighboring wind farms are a nuisance, is important for the wind industry, as well as the energy industry as a whole. Nonetheless, although anticipatory nuisance claims, such as the one in this case, are not ordinarily upheld, they can slow projects and add additional costs, particularly where the plaintiff seeks a preliminary injunction before the project begins in earnest. And, of course, courts may entertain nuisance cases where actual proof of injury can be shown.