Civil Actions: Wind Farm Litigation Breakout in the US

judges-gavel

Judgment Day for Wind Power Outfits.

****

Back in February, a Michigan Judge ordered wind power outfit, Consumers Energy to produce a plan to rid its Lake Winds wind farm of excessive noise levels (see our post here). It elected not to; and, instead, appealed that decision.

On the second round, the court again found that noise levels from the operator’s turbines were well in excess of the relevant noise standard. The operator was left with the option of producing a proper noise mitigation plan – and abiding by it – or the risk of being shut down altogether (see our post here).

The result was a “we told you so” moment for locals – who had their own acoustic experts predict – long before it was built – that the wind farm could never comply with the criteria set for turbine noise. No surprises there.

The plaintiffs – with two solid wins in the bag – pressed on in their Civil Action against the developer: bringing matters to head, as the trial kicked off last month.

Operating under the adage about discretion being the better part of valour – the wind power outfit involved threw in the towel and has thrown a fat pile of cash at the plaintiffs in order to avoid an inevitable (and very costly) jury verdict in the plaintiffs’ favour.

MI turbine suit settled; another lesson in operating too close to already-generous noise limits
The Acoustic Ecology Institute
22 October 2014

For the past couple of years the Lake Winds Energy Park in Mason County, Michigan has been embroiled in a contentious dispute about its noise levels (image to left is the “Park” under construction).

In April 2013, five months after the 56 turbines began operating, 17 neighbors filed suit, claiming that wind farm noise, vibrations and flickering lights were adversely affecting their health. A few months later, after commissioning an independent sound study, the Mason County Planning Commission formally declared the wind farm out of compliance and demanded a mitigation plan; the developer, Consumers Energy, disputed the findings yet lost two appeals, one at the Zoning Board of Appeals and one in Circuit Court. During that series of challenges, Consumers developed a plan to modify turbine operations for 7 turbines closest to the four sites where they were found to be marginally too loud.

Marginal is indeed the word: the sound study found 4 locations where the sound level peaked at 0.3 to 1.2 decibels over the 45dBA noise limit (it takes 3dB for a difference between two sounds to be audible); when using 10-minute averages, there were no violations.

The various explanations by the consultant, Brian Howe, illustrated the fine line that the turbine operations were walking. His report stressed “general compliance with sound level criteria,” and noted that the brief violations “do not represent a statistically significant portion of time and do not indicate a systemic exceedance.”

In his initial testimony at an August Planning Commission meeting, he said that there are no recommendations to correct for these times because “there is not a situation where they are predictably going over 45.” Later, in a November letter to the Commission, after learning that the county had previously decided NOT to allow for occasional exceedances, he stressed that “I can assure the County that competent, material and substantive evidence supports the conclusion that the turbines are not in compliance at certain residences on occasion” and elaborated:

Excursions over 45 dBA should have been anticipated since, as outlined in the acoustic study by Tech Environmental prepared in June 2011, the wind energy park was designed with sound levels identically equal to the 45 dBA criteria at some key receptors with no factor of safety to address the fact that the prediction methodology has a stated accuracy worse than +/- 3 dBA. If Tech Environmental was aware that achieving the criteria even 95% of the time was unacceptable to the County, it would have been prudent to incorporate a suitable safety margin to account for the statistical variation in sound levels.

And this is the first half of the central lesson here: it’s essential that enough of a safety factor is built in to the sound models to account for known variability in sound production (how loud the blades are in various unsteady wind conditions) and sound propagation (how far sound travels as it gradually loses power).

Regular readers will know that variability is indeed, as Howe mentioned, often more than the simplified 3dB margin of error that was neglected here (see AEI’s 2012 report). The second half the lesson is related: when noise limits—for the sound of the turbines when it reaches nearby homes—are set as high as 45dBA, they will be regularly audible at these homes, and likely well above night-time ambient sound levels.

As many acousticians have stressed for years, these situations are very apt to trigger a significant number of complaints, especially if there are dozens of homes in that nearby range. Here, we had the worst of both worlds: turbine siting plans that pushed sound right at the limit into nearby homes, and a limit that was on the high end of tolerability for many neighbors. Indeed, after one such cautionary report was presented to the Mason County Planning Board, it decided to lower the limit to 40dB, but that change was revoked after push-back from Consumers Energy.

With this backdrop, this week the 17 original plaintiffs in the noise nuisance lawsuit agreed to a settlement offer from Consumers:

the financial and possible operational details are confidential (2 later additional litigants are yet to settle, but negotiations are ongoing). While many such lawsuits languish, as it can be very hard to prove causality of health effects or a threshold of nuisance, it is always notable when a company decides it’s more advantageous to settle than to push through a court hearing (which was set to begin, with the jury already seated). This is the latest of several such suits that were settled behind closed doors – other high profile compensation cases include Mars Hill, Maine and the Davis family in the UK, while property buy-outs of people who’ve either moved from their homes or become vocal about their issues are widespread, though not common, including a recent buy-out settlement with a family in Vermont, and purchases of multiple homes in Ontario’s Bruce and Dufferin Counties. It’s unfortunate that confidentiality clauses leave the rest of us in the dark, for one of the ways forward is for the wind industry to more willingly compensate those most impacted by their operations, and these cases could offer some guidance as to what level of compensation may be mutually agreeable.

Meanwhile, to the best of my knowledge, Consumers Energy’s challenge to the Mason County demand for mitigation is ongoing; the latest report I’ve found is that the company filed an appeal in July after its loss in Circuit Court. The implications of how that plays out could be far-reaching. The company’s insistence that Howe’s assessment is faulty is based on two related technical points: whether instantaneous exceedances should be considered violations, and whether unattended sound monitoring can reliably identify violations. The latter question gets down into the technical weeds, including accounting for the presence of other ambient noise as well as turbine sounds, and the choice of measurement metric (L90 or Leq, as well as strict adherence to other sound measurement standards identified in the ordinance, which, like many local ordinances, is not necessarily savvy about all the implications and options for measurement). As reported by Michigan Capital Confidential, a good source for coverage of this issue:

Arguing that the County’s decision was an “erroneous ruling,” the utility filed a 38-page appeal with the Michigan Court of Appeals on July 18. In addition, Consumers Energy is saying that if the ruling by 51st Circuit Court Judge Richard Cooper were allowed to stand, it could have an impact on many other wind turbine plants across the state.

“This has implications beyond just Mason County,” Dennis Marvin, spokesman for Consumers Energy told Capitol Confidential. “We believe the study the county based its decision on was flawed. We took this decision (to appeal) very seriously, but ultimately our legal staff determined this was in the best interest of our customers and the landowners at the wind park.”

Rick James, of East Lansing-based E-Coustic Solutions, is an acoustician specializing in the production, control, transmission, reception and effects of sound. According to James, Consumers Energy is not exaggerating when it talks about the potential impact of the Lake Winds case.

“Consumers’ appeal has less to do with the supposed 1 decibel error, the topic of the appeal, and more to do with the wind industry’s broader concerns,” James said. “A decision by the Appeals Court in favor of Mason County would make it easier for other counties and townships with wind energy utility noise regulations to prove non-compliance.”

“Consumers would have been better advised if they had not accepted the conclusions of their acoustical consultant that the proposed project could be fit into the host community without causing problems,” James continued.

The Acoustic Ecology Institute

Notable is the fact that the plaintiffs’ settlement was won “with the jury already seated”.

There’s nothing quite like the theatre of a jury trial (the norm in civil actions in the US) – which tend to sharply focus the minds of defence lawyers facing a dozen ordinary Joes and Janes – especially where the plaintiff is pitching a case with plenty of room for human sympathy.

From a defendant’s perspective, the terrifying prospect of having to work bad facts around a jury is exemplified nicely in this scene from the film, A Civil Action:

****

 ****

Sometimes, for a defendant pushing the proverbial uphill, it’s obviously better to retreat (privately) than to get slaughtered (very publicly).

Meanwhile, in New York State, another Civil Action has kicked off, with locals suing a wind power outfit for “constant noise, vibrations and flicker”; significant impacts on the plaintiffs’ health and well-being, causing sickness, soreness, lameness and disability. The plaintiffs’ are seeking $20 million in damages for personal injuries, lost quality of life, and a loss in property value – and are also seeking $20 million in punitive damages.

New lawsuit filed in Orangeville
The Daily News
Matt Surtel
23 August 2014

ORANGEVILLE — A group of about 60 town residents has filed a $40 million lawsuit against the Invenergy wind energy company.

The State Supreme Court suit was filed Aug. 1 in Wyoming County. Invenergy operates the Orangeville Wind Farm within the town.

The suit alleges “constant noise, vibrations and flicker” significantly impacted the plaintiff’s health and well-being, causing sickness, soreness, lameness and disability.

It also accuses Invenergy of diminishing the plaintiffs’ property values, creating noise pollution, and regularly violating the town’s 50-decibel noise ordinance.

The suit asks for $20 million for personal injuries, lost quality of life, and a loss in property value. It also asks for $20 million in punitive damages, compensation for court costs, and any other relief the court deems necessary.

Invenergy said in a statement issued Thursday that it will vigorously defend itself against what it described as unfounded claims.

“While support for renewable energy is strong across our country, we take seriously any concerns of those who live in a project host community,” the statement reads. “That is why we took great care in developing the Orangeville wind farm in accordance with all local, state, and federal laws and regulations. The lengthy authorization process was open and inclusive, allowing extensive opportunity for citizen input.

“In addition, since the Orangeville wind farm commenced commercial operation, the facility has been operated and maintained in accordance with all applicable laws and regulations, including local zoning laws, relevant state agency directives, and Federal Aviation Administration requirements.”

This is not the first time legal action has occurred involving the wind farm.

The Clear Skies Over Orangeville group twice sued the Town of Orangeville unsuccessfully in 2010 and 2012. The lawsuits were dismissed each time.

Property owner Robert White also filed a suit in 2011, which said a proposed turbine tower was too close to his hunting cabin off Bantam Road. He was successful, and a special use permit and site plan approvals for the tower were nullified.

Many of the plaintiffs in the lawsuit are couples, representing about 25 different addresses within the town. The plaintiffs include several affiliated with CSOO.

The Orangeville Wind Farm has 58 turbines. Each is about 430 feet tall. Commercial operations began in March.
The Daily News

Invenergy’s spinmaster is full of (typical) wind weasel bravado about its approach to defending the case – but Invenergy’s chest-thumping is likely to evaporate just as soon as the jury takes their seats.

Jury-being-sworn-in-006

Invenergy will have its cheque book out well before they take their seats.

About stopthesethings

We are a group of citizens concerned about the rapid spread of industrial wind power generation installations across Australia.

Comments

  1. In years to come we will all look at the broken and rusting wind turbines just like in California as a monument to our stupidity.

  2. All the personnel that work for these industrial wind farm companies should be made responsible for the lies that they have spun for their masters, when they are found out. Fines and jail should work to bring all these corrupt fans to a fast halt.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: