Michigan landowners’ long-shot lawsuit has high stakes for wind industry

An unlikely legal win by neighbors of a Michigan wind farm would have the potential to chill wind energy development in the state, legal experts say.

A group of landowners filed suit in state court in August alleging a wind project near Lake Michigan in the Upper Peninsula is causing adverse health effects. These include sleep interruption and deprivation, stress, “extreme fatigue, anxiety and emotional distress.”

Those claims will be difficult to prove, legal experts said, but if the landowners are successful it could have significant implications. That’s why clean energy groups are closely watching the case, which resurfaced in circuit court a month after being dismissed by a federal judge in July.

“If someone got a judgment that windmills contributed to some adverse health effects people suffered, I would think that would be a pretty significant ruling,” said Ross Hammersley, a Traverse City attorney with Olson, Bzdok & Howard who specializes in environmental and real estate law. Hammersley, who is not involved in the case, reviewed some of the court filings for Midwest Energy News.

“I would certainly think it would raise a lot of eyebrows and could potentially have a chilling effect on future development of wind energy,” he said.

Heritage Sustainable Energy’s 14-turbine Garden Wind project came online in 2012 and was the first in Michigan’s Upper Penninsula. At the time, the community did not have local regulations in place involving setback distances and noise levels. Heritage is pursuing a second phase of the project that calls for more than 35 turbines, generating further controversy among landowners.

Several individual landowners, as well as a group called the Garden Peninsula Foundation, filed the original claims against the project in federal district court in January 2015. Landowners alleged the turbines caused negative health impacts and decreased property values. The neighbors also claimed the U.S. Fish and Wildlife Service violated the National Environmental Protection Act and the Endangered Species Act by failing to perform certain environmental assessments.

In July, U.S. District Judge Paul Maloney dismissed the Endangered Species Act claim “with prejudice,” meaning it couldn’t be refiled in state court. Four other claims including nuisance and negligence were dismissed “without prejudice,” allowing the landowners to refile their case in state court because the claims “raise important state interests,” Maloney’s order said.

The four claims, alleging negligence, impacts on migratory birds, public and private nuisance, and violation of the Michigan Environmental Protection Act, were filed in Delta County Circuit Court in August. The landowners are also looking to block the planned second phase of the project.

The landowners are represented by a Michigan law firm as well as multiple attorneys from Benesch, Friedlander, Coplan and Aronoff of Columbus, Ohio. One of the Benesch attorneys, John Stock, is active in several cases in Ohio in which landowners fought wind projects.

Stock declined to comment.

‘Fairly unprecedented’

Liesl Eichler Clark, president of the Michigan Energy Innovation Business Council, said it’s “fairly unprecedented” that there were no local zoning rules in place when the Garden project was built.

“It’s definitely a case we’re watching,” Eichler Clark said. “I think it’s important that developers always create good relationships with communities.”

Law experts and industry officials say it would be difficult to link health problems directly to wind turbines, based on scientific evidence, though there have been connections between noise exposure and annoyance. Moreover, studies have shown that wind projects do not have a widespread negative impact on nearby property values.

Hammersley said he is not aware of a court supporting the health claims, and a confidential settlement between the developer and landowners could be more likely. In 2014, Heritage settled a case out of court involving one of its wind projects in the Lower Peninsula after residents alleged it caused health problems.

Additionally, Hammersley said it’s difficult to prove nuisance claims because you’d have to show causation — or whether infrasound and flicker is directly causing adverse health impacts.

“I’m not aware of any that have gone all the way through trial where someone has proved these adverse health effects,” he said. “That’s not to say you can’t prove it.”

Seeking relief

Sue Rochefort, one of the landowners suing Heritage, said it’s unlikely the group could shut the project down. She is hoping noise levels and shadow flicker are reduced by shutting the turbines down during certain hours.

Craig Potvin, representing the Garden Peninsula Foundation, said he is more optimistic about the outcome in state court after the claims were dismissed in federal court.

“I think it will be held up in court for a while — ultimately I think we’ll prevail,” he said.

Marty Lagina, founder and CEO of Heritage Sustainable Energy, said the company was “extremely gratified” that the federal judge found no merit in the Endangered Species Act claim. He also denies that wind turbines are bad for peoples’ health.

“I do believe there are some aesthetic issues with turbines. They’re big, they do make some sound,” he said. “It’s very subjective as to what people might find objectionable. I think there is a highly vocal, well-organized group perhaps funded by the fossil fuel industry that fights wind projects.”

Opposing sides in the case each said they would be willing to settle the claims, though as of last month that prospect was unclear. Lagina said settling is possible “under the right conditions.”

Rochefort said she would be “very fast” to talk with the developers about settling if they proposed no more turbines, though Lagina said the company is still pursuing the second phase.

Potvin characterized the ongoing legal battle as the company’s attempt to “take advantage of a small community” and trying to “knowingly divide” it.

Lagina counters that opponents don’t represent all landowners, especially those who are interested in signing leases with the company.

“What’s so wildly unfair is that people who are against these are almost directly reaching into the pockets of their neighbors and taking money from them,” Lagina said.

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