Texan Turbine Hosts Declare War on Developers

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Texans are said to ride a little taller in the saddle than most.  Their swagger and independence goes back to the very beginning of the Lone Star State in 1836.

In 1835 Texans went to war with the Mexican government, fighting a series of pitched battles and bloody skirmishes ending in April 1836 – following which, Texans declared themselves a Republic.

The most famous battle Texans had with the Mexicans being the siege at the Alamo – which ended in bloody defeat for the Texan defenders – almost all of them were killed.  However, the besieged Texans (estimated at between 180 and 250 men – including the legendary Davy Crockett) gave the 1,500 Mexicans who laid siege to the fort – for nearly 2 weeks – a taste of Texan tenacity.  The defenders – despite being seriously outnumbered and outgunned – killed or wounded somewhere between 400 and 600 Mexican soldiers, before being overrun.

Ever since, Texans have used the phrase “remember the Alamo” as a rallying war cry – based on the notion of Texan’s fearlessness in the face of insurmountable odds.

Well, 23 fearless Texans have just circled their wagons and hunkered down for the battle of their lives.

STT has reported on cases in nuisance being pursued against wind farm operators by neighbours being driven nuts by the incessant low-frequency noise and infra-sound generated by giant fans (see our post here).

But there hasn’t been a nuisance case brought by landowners who signed up with a wind developer to host them – until now.

Proceedings have just been issued in the Texas District Court by 23 plaintiffs against the operators of 2 Texan wind farms – Duke Energy and E.ON Climate & Renewables.

But the plaintiffs aren’t just red-necked, climate change denying, fan-hating NIMBYs.  Oh no, this group of angry litigants are paid a fat pile of cash by the operators they are suing to host their giant fans on the plaintiffs’ own land.

Here’s the Valley Morning Star’s take on a tremendous Texan tale.

Court waits on wind farms’ response to suit
Valley Morning Star
Fernando Del Valle
29 January 2014

RAYMONDVILLE — Two wind farms have until next week to answer a lawsuit in which residents accuse wind turbines of creating noise, devaluing property and posing possible health risks, federal court records show.

Records show U.S. District Judge Hilda Tagle requested that Duke Energy and E.ON Climate & Renewables North America and other defendants answer accusations by Feb. 6.

The companies requested Dec. 27 that the lawsuit originally filed Nov. 27 in 197th State District Court here be moved to federal court.

Twenty-three residents including Willacy County Commissioner Noe Loya and Precinct 3 Justice of the Peace Juan Silva Jr. filed the lawsuit, arguing the companies built wind turbines on their properties that created “nuisances.”

Elon Hasson, spokesman for E.ON in Chicago, said the company was reviewing the lawsuit.

“We develop all of our wind farms in a safe, state-of-the-art and responsible manner,” Hasson said in an email. “We believe these claims will be shown to have no validity.”

Tammie McGee, spokeswoman for Duke in Charlotte, N.C., declined comment but added the plaintiffs consented to the placement of turbines on their properties.

The companies built “hundreds” of wind turbines that stand 467-feet high and weigh 7 tons on the properties of plaintiffs who received or will receive money and tax benefits that will exceed $50 million, the lawsuit states.

The lawsuit states the companies “carelessly and negligently failed to adequately disclose the true nature and effects that the wind turbines would have on the community, including the plaintiffs’ homes.”

The companies told residents that the wind turbines “would not be noisy, would not adversely impact neighboring houses and there would not be any potential health risks,” the lawsuit states.

But the wind turbines create noise, reduce property values, interfere with television, telephone, satellite and Internet reception and destroy “scenic countryside,” the lawsuit states.

The lawsuit states the wind turbines create “acoustic pressure pulsations that affect peoples’ health.”

Some residents were “even forced to abandon their homes,” the lawsuit states.

The lawsuit states “permanent and irreparable harm will be caused to the area” because the companies and county did not plan to remove the turbines when their approximately 20-year lifespan expires.

Loya “can no longer enjoy sitting outside because of the loud noise,” the lawsuit states. “The turbines also cause noise both inside and outside of the home, disturbing the peace and making it difficult to enjoy living there. (Loya) also experiences problems with his television reception. The wind turbines have also had a negative impact on the value of the property, among other losses,” the lawsuit states.

The lawsuits states Silva “has difficulty sleeping, cannot have his windows open (and) cannot enjoy the sound of nature, due to loud noise from wind turbines.”

fdelvalle@valleystar.com
Valley Morning Star

Hold the phone?  So a fat pile of cash doesn’t salve all wounds?

You see, Australia has been “blessed” with a former tobacco advertising guru who has re-made his flagging media career selling a theory – on behalf of his wind industry clients – that the only people who complain about noise impacts from giant fans are grumpy neighbours, who aren’t getting paid.

The guru and his acolytes have gone further – asserting that paid-up turbine hosts NEVER complain about noise impacts – and that those unpaid, whinging neighbours who do complain, do so only because they’ve been brainwashed by the “evil” Dr Sarah Laurie (of Waubra Foundation fame).

Turbine hosts for Infigen at Millicent in SA – David and Alida Mortimer – put paid to that lie a long time ago – the horrendous impacts on their health caused by the fans they’re paid to host is a matter of public record (see our posts here and here).

However, this bunch of disgruntled Texan turbine hosts have gone a lot further than just complaining to the media.

Instituting legal proceedings is a serious step.  The plaintiffs will need to stump up tens of thousands of dollars for their own legal costs and may end up paying the same amount or more for the defendants’ legal costs, should they lose.  So, facing that kind of risk, you’d tend to think these plaintiffs have really got some kind of axe to grind over turbine noise impacts.

The Texan plaintiffs are, of course, in contractual relationships with the developers – the terms of which, ordinarily, preclude a claim in nuisance caused by turbine noise.  Under most contracts the host agrees to accept the noise generated in exchange for the licence fee they receive (see our post here).

However, a court will quickly relieve a plaintiff of their contractual obligations where the other contracting party has made a representation, which induced the plaintiff to enter the contract and that representation was false at the time it was made – a “misrepresentation” or what’s referred to as misleading and deceptive conduct under Trade Practices and Consumer legislation.

A court will then unwind the contract – and, if the plaintiff has suffered loss, award damages to the plaintiff.

The most obvious misrepresentation made by wind farm developers to unsuspecting turbine hosts is that their turbines aren’t noisy – a statement which is obviously false at the time it is made – and which, no doubt, has induced many a gullible host to enter their contracts.

Plenty of unwitting hosts have entered into contracts (the effective term of which is often 75 years) on the strength of the lies told by developers.  Now it seems that – at least in the Lone Star State – their lies have caught up with them.

STT is aware of several turbine hosts in South Australia who would love to follow the lead of these tenacious Texans. They too, would dearly love to get out of their contracts and have the fans removed from their properties altogether – one of them has told senior Coalition Members that: “it was the worst mistake I’ve ever made” and that “I wouldn’t wish turbines on a dog”.

Australian farmers being driven nuts by the noise of the fans they host should pay keen attention to this audacious move by their Texan colleagues, who are clearly prepared to fight hard to save their health and sanity.  As Texans say – when the odds are stacked against them – just “remember the Alamo”.  Sure, Texans mightn’t always win, but they tend to take an awful lot of the enemy with them on the way out.  Go hard, Texans!