NextEra Energy Resources L.L.C. has set sights on private emails, texts, and voice mails as part of an effort to find “potentially impermissible communications” among newly elected officials in Almer and Ellington townships.
Jonathan Lauderbach, attorney from the Midland office of Warner, Norcross & Judd L.L.P., sent an email to an attorney representing Almer and Ellington townships just three days after new officials took office in both jurisdictions.
The Advertiser obtained a copy of the Nov. 23 email via the Michigan Freedom of Information Act. Among other things, the Lauderbach email asks for preservation of “potential relevant information.”
“This includes without limitation any correspondence prior to the new members taking office that relates to wind energy, NextEra, the Tuscola III project, or the decisions made (Nov. 22),” Lauderbach wrote.
Lauderbach identifies his firm as a legal representative of Juno Beach, Florida–based NextEra Energy Resources L.L.C., a company that wants to build a $200 million wind turbine project in Tuscola County’s Almer, Ellington, and Fairgrove townships called Tuscola III Wind Energy Center. Bryan Garner, manager of communications for NextEra Energy Resources, provided a brief response to questions about the Lauderbach email from The Advertiser.
“We have questions about how the newly elected board members in Almer and Ellington Townships conducted their first meeting with regard to our project and whether any potentially impermissible communications occurred before the meeting,” Garner said.
“Our request that the townships’ attorney preserve potentially relevant information is appropriate and is consistent with our right to due process,” Garner added. “We will protect our rights and the rights of the landowners who are committed to this project.”
Jim Mantey, supervisor, Almer Township, said it’s the latest example of how NextEra Energy Resources officials seem intent on creating an adversarial relationship with township officials, who are concerned most with health, safety, and welfare of all citizens they represent.
“We have, collectively as citizens, gone to numerous wind energy development meetings around the Thumb area (of Michigan) and this isn’t a new approach,” said Mantey.
Jim Tussey, newly elected trustee, Almer Township, said he believes the move shows the true colors of NextEra Energy Resources.
“My response on the Lauderbach email is if all you have is a hammer, then everything is a nail,” Tussey said. “NextEra has only one response and that is to sue.
“They show to be friendly … then when they don’t get what they want, they say ‘You’re breaking the law,’” Tussey said.
Tussey said emails such as the one sent from Lauderbach distract from the outstanding issues that remain with regard to Tuscola III.
During a Nov. 10 Almer Township Planning Commission public hearing, Almer Township’s engineering firm, Spicer Group Inc. of Saginaw, identified nearly 20 issues with the application for special land use permits filed for Tuscola III on behalf of NextEra Energy Resources.
The commission didn’t take any action, citing a time limit on the meeting that ran nearly 3.5 hours.
“I believe this kind of action (from Lauderbach) has a way of washing over the details, and making them insignificant, and I think that’s what it’s meant to do – continually squelch the details, the real-life results, what people have said and experienced with turbines, and turn it into a large law firm threatening to sue the township,” Tussey said.
Officials from NextEra Energy Resources said in January that they had hoped to break ground on Tuscola III by the end of 2016.
A fact sheet created by NextEra Energy Resources says Tuscola III would have a maximum capacity of 125 megawatts through energy captured and converted to power via more than 50 wind turbines made by GE.
The company says the project would lead to more than 200 construction jobs and as many as 10 full-time positions. The company estimates it would pay more than $41 million in property taxes during the first 30 years of the project being in operation. Further, NextEra Energy Resources says it would pay more than $27 million to landowners during the same timeframe.
Officials from NextEra Energy Resources have consistently spoken of the company’s “core values” that focus on commitment to excellence, treating people with respect, and “do the right thing.”
However, a group of citizens known as the Ellington-Almer Concerned Citizens has been vocal about needing to have stronger wind ordinances in place that they say need to emphasize health, safety, and welfare over profits.
They further have alleged conflicts of interest, including the former supervisors of Almer and Ellington townships who had wavered back and forth between taking part in discussions related to the project throughout the year before both being voted out of office.
Several members of the group were elected to office in Almer and Ellington townships, taking office at noon on Nov. 20.
The boards of both townships held special meetings on Nov. 22 with the majority of each respective unit of government voting to slow down the project due to a high number of questions about the application for the special land-use permit NextEra Energy Resources must have approval for before Tuscola III becomes reality.
In Ellington Township, the board approved a one-year moratorium on wind turbine projects (though that can be changed should the board decide).
In Almer Township, a charter township, a similar vote is likely at its Dec. 13 meeting.
Both boards also approved the hiring of Michael Homier, attorney with Grand Rapids-based Foster, Swift, Collins & Smith P.C. to deal with wind energy-related matters. Previously, officials relied on Lapeer-based Taylor, Butterfield, Howell, Churchill & Garner P.C. for legal guidance (the firm is still being used by both for other legal matters).
The day after those Nov. 22 special meetings, Lauderbach sent his email to Homier.
“NextEra is in the process of analyzing the effect of the actions taken last night by both township boards and exploring its options as a result of those actions,” Lauderbach wrote. “We therefore expect that you will direct the members of both townships’ board and planning commissions to ensure that documents, electronically stored information and other potential relevant information are preserved and not deleted from any (electronic storage information) system or otherwise destroyed or made unavailable.”
“We further expect that you will take steps to ensure that your clients and any current or outgoing members of any boards of planning commissions thereof understand their obligation to preserve such potentially relevant information, and that you will specifically instruct them to preserve any email or voice mail messages, text messages, or other ESI on either township-issued or person computers or devices such as cell phones or smartphones and including any instant messaging services such as Facebook Messenger or other similar services.”
Fred Overdier, a general litigation attorney who specializes in business litigation with Saginaw-based law firm Braun Kendrick, said it generally appears to be a move preparing for some kind of legal action.
“From a general perspective, if a party or an attorney anticipates bringing a legal action, but is not certain when it will be brought, they may issue a notice such as what you have described, because they want to be certain that all of the information is preserved and not intentionally or inadvertently lost before the litigation starts,” Overdier wrote in an email to The Advertiser. “Without a case pending, there would be no court order to compel or mandate the preservation of evidence, but the notice may be considered later if the issue arises.”
One official in Ellington Township who didn’t want to be identified called the Lauderbach email a “scare tactic.”
Officials in Almer Township said it has worked to some extent.
Tussey said officials have been exceedingly cautious about with whom they communicate and how since taking office.
That includes, he said, what had become a “tight knit” group “that is all going for the same thing – health, safety, and welfare of our township.”
“It hasn’t divided, but it’s retreated everyone to their safe space for fear of what they say to be used against them,” Tussey said.
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