Communities fight wind farms, face pushback
By Emily Le Coz & Lucille Sherman
GateHouse Media | Dec. 13, 2017
Communities that oppose wind farm developments through rule changes or referendums sometimes face deep-pocketed pushback from energy companies determined to build their projects.
At least a dozen communities have faced legal challenges. Others have battled public-relations campaigns and lobbyists.
Even some places that initially welcomed wind farms later found themselves locked in litigation with energy companies over financial or regulatory disputes.
“It’s such a political game, and they are very powerful,” said Kim Spady, attorney for Hinton, Oklahoma, one of the towns fighting a lawsuit filed by Florida-based NextEra Energy Resources.
NextEra sued Hinton in February, less than one month after the town passed an ordinance declaring industrial wind turbines within two miles of its borders a public nuisance.
The company claimed in its lawsuit that Hinton inappropriately “intended to restrict and curtail” its proposed projects in the area – two wind farms totaling 156 turbines called Minco Wind IV and Minco Wind V.
NextEra already spent millions of dollars to lease land and prepare for construction, the company argued, and Hinton changed the rules in the middle of the game.
Hinton denied that charge. It said it followed proper procedure in passing its ordinance, which was designed protect residents and preserve land for future housing developments.
Officials also said they sought the two-mile buffer months before passing the ordinance, and that NextEra agreed to it.
“But when we asked for that in writing, they refused,” said Town Administrator Matthew Mears, who was at the meeting. “They wanted it to be a handshake deal. When we insisted on it, they left. So that’s why we passed the ordinance. It basically puts into writing what everybody already agreed to in that meeting.”
NextEra spokesman Bryan Garner declined to comment about ongoing litigation, saying the court documents speak for themselves. The documents do not address the meeting described by Mears.
A judge dismissed NextEra’s case, but allowed the company to file an amended complaint. That case is still pending.
Hinton, a tiny community of less than 3,200 people, has spent more than $20,000 so far fighting NextEra’s court challenge, Spady said. “They’re not good partners,” Spady said. “They don’t care about local folks.”
NextEra also sued two Michigan townships this year, claiming a systematic effort by newly elected officials to kill its proposed wind farm development. A federal judge ruled in favor of one of the townships in November; the other case is still pending.
Clinton County, Missouri, also got sued after banning industrial wind turbines. The move jeopardized NextEra’s plans to develop its 201-megawatt Osborn Wind Farm.
NextEra claimed in its lawsuit that Clinton County mishandled the permitting process and acted outside of its powers in approving the prohibition. The company built the entire project in neighboring DeKalb County instead.
Clinton County’s insurance policy has picked up the tab for legal fees in the ongoing case, but that could change, said Clinton County Presiding Commissioner Wade Wilken Jr.
“I believe they intended to bleed us dry so we couldn’t fight this, and they would win,” Wilken said. “They try to bully counties into spending millions of dollars in legal fees.”
Mason County, Michigan, green-lighted a wind farm nearly seven years ago amid promises it would operate quietly and generate a steady cash flow for the local coffers.
But the rural community since has spent some $200,000 fighting legal claims related to the Lake Winds Energy Park, said Mason County Administrator Fabian Knizacky.
Lake Winds went online in November of 2012. Eleven months later, the Planning Commission determined its turbines violated county noise standards and ordered it come into compliance.
Michigan-based Consumers Energy, which owns the project, challenged that finding in court. The company lost, but not before costing the county thousands of dollars in legal fees, Knizacky said.
Consumers Energy also filed claims before the state Tax Tribunal challenging the county’s demand for the tax revenues the company had projected.
Before winning the county’s approval for its wind farm, Consumers Energy estimated the project would generate $29 million in property tax revenues for the county, townships and special districts during the first two decades of operations alone, according to a company document.
But after the county approved Lake Winds, the state changed its depreciation schedule for wind turbines, thereby reducing their taxable value.
When Consumers Energy decided to use the new schedule to reduce its tax payments to the community, Mason County balked.
Consumers Energy would pay all taxing jurisdictions approximately $605,000 less in 2016 and approximately $907,000 less in 2017 alone, Knizacky said.
“The way it works is you set the initial value of the turbine, which we’re in agreement on, but we disagree about how much value they’ve lost over the years,” Knizacky said.
“Under state law, they can depreciate down to 30 percent of their original value,” he said. “What we’re arguing over is a matter of how long it takes to get to that 30 percent. Consumers Energy says they have depreciated more than we say.”
Also in dispute is whether Consumers Energy can use the 30 percent federal Investment Tax Credit to even further lower the value of its turbines.
“For example if they spent $100 million on the turbines and the federal government gave them $30 million in tax credits, they want to say they should only be assessed at $70 million,” Knizacky said. The county disagrees.
Consumers Energy declined to comment for this story.
NextEra and Detroit-based utility DTE had similar tax disputes before the same tribunal regarding their own wind farms, but NextEra withdrew its claims in September.
“At NextEra Energy Resources, we want the communities where we do business to benefit from our projects,” the company said in a statement. “We also want them to know what they can expect to collect in tax revenue and have certainty in their budgeting processes.”
The wind industry also spends its vast wealth in local, political campaigns.
Two large companies gave more than a quarter-million dollars combined this year to promote a pair of Michigan county referendums that would have paved the way for their projects.
NextEra had plans to install 60 turbines as part of its Huron Wind Energy Center; DTE wanted to erect 70 of them for its Filion Wind Park.
The Huron County Board of Commissioners approved plans for the projects in late 2016, but opponents collected enough signatures to force referendums on both those board actions, placing them in the hands of voters.
In the months leading up to the May special election, NextEra donated $341,000 to a campaign committee called Say YES to Huron’s Future. DTE donated $33,030 to a committee called Citizens for Fair Government.
The sole committee against the referendum, Huron County Wind Resistance, received just $3,715 – all from individual donors.
Voters overwhelmingly rejected both the companies’ projects.
Michigan, which already hosts 25 wind farms, has become a recent battleground for the industry as weary residents fight back against plans for more turbines. In addition to the referendums in Huron County, voters in Sanilac and Tuscola counties this year also approved stronger zoning requirements for industrial turbines.
Communities are forced to take matters into their own hands, since state and federal regulations on industrial wind farms are scarce, said Oklahoma State Rep. Earl Sears, a Republican whose state has seen one of the nation’s largest proliferations of wind farms.
With more than 40 wind farms totaling some 3,500 turbines, Oklahoma ranks third nationwide in wind energy production, according to the American Wind Energy Association.
Sears, who gets regular calls from constituents concerned about proposed wind farms, has introduced several pieces of legislation to regulate the industry.
The wind industry fights him on every one of them, he said. Twenty lobbyists tied to the wind industry are actively registered in Oklahoma, state records show.
One of Sears’ bills would have required that industrial turbines stand no closer than a quarter-mile from property lines to protect residents from their noise, shadow flicker and low-frequency pulsations. Sears said he initially set the distance at a half-mile but faced such backlash from the wind industry that he felt forced to lower it.
That bill died. “They fought me tooth and toenail,” Sears said.
Another bill required that wind farm developers hold public meetings to inform residents of their plans. Sears said he did it to combat the perceived secretiveness of the projects.
That bill passed despite pushback.
The American Wind Energy Association has spent nearly $17 million on federal lobbying efforts alone in the past decade, according to the U.S. Senate Office of Public Records.
Individual wind companies also have their own lobbyists. NextEra alone has spent some $54.5 million on lobbying since 1998 on issues like the renewal of federal subsidies for wind. And its PAC spent over $1.6 million in the 2015-2016 election cycle.
Sears bristles at the irony that the tax credits his state gives these companies help fund the lobbyists they hire to fight his bills.
Oklahoma has four wind subsidies that cost the state government more than $316 million last year alone, according to a report from the state treasurer. Three of them – an ad valorem tax exemption for new construction, a zero emission tax credit and an investment tax credit – all will end this year.
Sears was among the lawmakers supporting the end of those subsidies. The wind industry fought those efforts, too, he said.
Now, he and his colleagues want to pass legislation restricting wind farm development in the path of military flight training missions. The state has several Air Force bases whose training routes already face degradation due to turbines from existing wind farms.
Continued degradation could threaten those bases, which provide enormous economic benefit to the state, said Republican State Rep. Charles Ortega. He fears the federal government could close one or more of those bases if they can’t conduct flight operations due to turbines. Again, though, the wind industry is fighting the move.
“In the oil industry in Oklahoma, we have reams of books of rules and regulations on what they can and can’t do. But with wind, you just don’t have that much,” Sears said. “It’s all by gentlemen’s agreement. And therein lies the rub – every time we try to do something on wind regulations, the wind industry comes up to hire lawyers to fight rules and regulations. They want none.”