The headwinds one wind developer is facing as it attempts to build a project in western Oklahoma are only getting stiffer.
To date, NextEra Energy’s proposed Minco IV and Minco V wind farms have prompted the town of Hinton to pass an ordinance that declares commercial wind turbines a nuisance and resulted in the filing of two federal lawsuits – one dismissed, the other poised for dismissal.
NextEra’s projects also contributed to steps lawmakers took during the 2018 session to add additional reporting requirements involving wind farms, requiring developers to notify the Oklahoma Military Planning Commission of their projects.
The added language requires the Military Planning Commission to share those plans with local base commanders and the Defense Department’s Military Aviation and Installation Assurance Siting Clearinghouse for review to ensure wind turbines wouldn’t create a flight hazard that would impact national security.
The clearinghouse routinely is consulted by the Federal Aviation Administration as part of evaluations made for wind turbines and associated structures to check for aviation hazards. The two evaluate wind farm projects and issue no hazard determinations or mitigation requirements on a structureby-structure basis.
But perhaps most importantly, the added language signed into law by Gov. Mary Fallin in May bars developers from starting any construction on a proposed turbine or other associated structure until it has received a no flight hazard determination.
But that language appears to conflict with federal regulations.
Federal rules state that a developer seeking a no hazard determination on a turbine or associated structure may tart work on that project, provided it reaches no more than 200 feet above ground level.
If the determination is granted, the developer can complete the construction. If the determination isn’t granted, the developer is required to remove what has been built.
Indeed, NextEra has been working on many turbines making up Minco IV and Minco V that haven’t secured a no hazard determination, given they adjusted the turbine locations in a “microsighting” process to maximize turbine outputs and to account for agreements with landowners. It informed the FAA of those adjustments and asked for no hazard declarations on them in March.
That construction issue, in particular, has attracted considerable attention from state lawmakers and regulators.
Jared B. Haines, an assistant attorney general who heads the utility regulation unit for the Attorney General’s office, sent a letter on Aug. 30 to the Oklahoma Corporation Commission that raised questions about whether NextEra is violating the amended state law.
“Should these allegations prove true … NextEra could be liable for millions of dollars in fines,” he wrote.
But Natasha M. Scott, the Corporation Commission’s managing deputy general counsel, replied to that letter with one of her own that states a review of commission records show NextEra informed the agency of its intent to build Minco IV and Minco V in 2016, and that regulators haven’t found any violations because the turbines in question are inside the projects’ original footprints covered by the original notifications.
Subsequently, the matter was brought before appointed members of the Oklahoma Aeronautics Commission, which voted to sue NextEra and elected members of the Oklahoma Corporation Commission, which encouraged its staff to begin working on rules to clarify the dispute.
Victor Bird, director of the aeronautics commission, sent an email to numerous legislators explaining a Sept. 11 commission vote to take NextEra to court.
While Bird is critical of Scott’s determination that NextEra has met required reporting requirements under state law, the lawsuit’s goal, he wrote, will be to force NextEra to stop construction work on all turbines in question until appropriate no hazard to flight designations have been awarded.
He said the aeronautics commission believes NextEra is building 175 turbines as part of Minco IV and Minco V that don’t yet have the needed no hazard declarations. He said NextEra has completed 39 of them, and noted the FAA lacks authority under its rules to prevent that from happening.
“It is unfortunate that the corporation commission is construing the (amended) Wind Energy Development Act … in the manner that it is. Its interpretation guts the policy underlying the notice and filing requirements in the act to ensure that wind energy development occurs in a manner that ensures both civil and military aviation safety,” he wrote in his email.
The issue also came before the Oklahoma Corporation Commission on Sept. 18 at Commissioner Todd Hiett’s request.
“It is not that I am looking for things to do … but what I don’t want to happen is, that by the time we get through a rule making, we are months down the road … and the horse has already left the barn,” Hiett said. “We should be proactive and move quickly.”
However, Jim Roth, representing NextEra before the Corporation Commission, urged caution.
He told commissioners NextEra maintains it met state-prescribed reporting requirements. Roth also told commissioners the projects are worth a half-billion dollars in construction, payments to landowners of more than $100 million and $75 million in property tax payments to local school districts in Caddo and Canadian counties during the project’s expected 30-year life.
Roth also said, “The one thing the Legislature has asked for is for the commission to promulgate rules, and we support that.”
Brandy Wreath, director of the Corporation Commission’s Public Utility Division, said staff believes the company has not violated state law, but added it continues to investigate.
Wreath also said the division is preparing to undertake a rule-making process to address the microsighting issue.
Commissioners took the matter under advisement.
On Sunday, a NextEra spokesman declined to comment about the overall situation involving the projects because of the pending federal case and because of the threat of litigation from the Oklahoma Aeronautics Commission.
But the firm is vigorously defending its projects in court.
It was accused in a lawsuit filed in early 2017 by the Scenic Prairie Preservation Association of failing to meet notification and public meeting requirements for Minco IV and Minco V that were part of state law at the time. The association asked for a ruling barring NextEra from building either project until it complied.
NextEra’s John DiDonato, vice president of development, told the court in an affidavit that his company had met all prescribed reporting and public meeting requirements and believed the association’s lawsuit was an attempt to delay or halt construction of the projects.
A month later, the parties agreed to dismiss that case, with each bearing its own costs and attorney fees.
NextEra brought the second case to federal court itself through subsidiary Minco Wind IV LLC, suing the town of Hinton because of the public nuisance ordinance approved in early 2017. It asks for the court to declare the law null and void.
The suit asserts Hinton’s ordinance illegally takes property rights from landowners who had agreed to lease their properties to the company for its Minco IV project.
The developer also asserts Hinton’s determination that such projects are a nuisance was based on 10 health concerns the developer said aren’t supported by accredited scientific research.
Plus, it asserts Hinton town officials illegally approved the measure, which applies to lands up to two miles outside its city limits, because they fumbled statutory requirements on using a hastily formed regional planning commission to request the measure in the first place.
NextEra states in the suit that enforcement of Hinton’s ordinance would require it to eliminate some of the projects’ planned turbines and move some of its associated equipment, potentially jeopardizing the project’s viability.
“The ordinance is clearly intended to disrupt the project,” the suit stated.
That case, filed, dismissed and then refiled by NextEra, has moved into an administrative closing order status where the parties have reached a pending settlement agreement. Details of the settlement are not disclosed.
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