Jury: Wind farm not a public nuisance 

In what may be the first of many courtroom battles, an Abilene jury ruled in favor of the booming Texas wind energy industry by saying that the world’s largest wind farm did not pose a public nuisance to neighboring landowners.

The litigation, the first of its kind in Texas, has spawned similar lawsuits in Cooke and Jack counties, and more lawsuits are being contemplated as rumors swirl that additional wind farms are being considered throughout the state.

But Trey Cox, the Dallas attorney for FPL Energy, which built the Horse Hollow Wind Farm about 20 miles southwest of Abilene, said Tuesday’s verdict should have a chilling effect on more litigation.

“I think the impact on other lawsuits is going to be heavy,” Cox said. “It also sends a clear message about the possibility of success of similar suits.”

Though residents had argued that the size of the 400-foot turbines was a significant part of the problem, jurors were limited to evidence about the noise generated from the machines.

The jury, in an 11-1 vote, decided that the noise did not pose an “unreasonable interference” on the landowner’s enjoyment and use of the property.

“In Texas, I can do what I want with my land so long as it not illegal,” Cox said. “If I want to paint my house pink or have a rusted tractor in my yard, I can do that so long as it doesn’t interfere with my neighbor.”

Landowner concerns

Steve Thompson, the Houston attorney for landowner Dale Rankin and the other plaintiffs, said they will appeal the jury verdict. He also disagreed with Cox that the Abilene trial will affect other counties, noting that he is receiving inquiries from around the state.

“How are you going to win in a county that bills itself as the wind energy capital of the world?” said Thompson, who filed the suits in Cooke and Jack counties. “A lot of this trial was about what they weren’t allowed to hear.”

Thompson and Rankin contend that wind energy is a failed public policy being propped up by federal and state tax credits and local tax abatements. They argue that wind does little to provide energy to solve the state energy woes, while loud, towering turbines mar the rural landscape.

“There’s a lot of people who came out of the woodwork and said ‘Man, these things are a problem,'” Rankin said. “That sentiment is growing across the state. I would say it’s going to light a fire in people in other parts of the state considering legal action.”

This fall, the Fort Worth-based Texas and Southwestern Cattle Raisers Association asked Gov. Rick Perry and the state Legislature for a moratorium on new construction to “evaluate the cumulative effects of industrial wind projects.”

State support

But the Legislature shows no signs of slowing the progress of wind energy.

Texas has mandated that at least 5,880 megawatts of energy in the state come from renewable energy by 2009 and 5,000 additional megawatts by 2015.

The Lone Star State currently has about 2,600 megawatts but that number may double by the end of 2007. One megawatt can power about 700 homes.

Steve Stengel, a spokesman for FPL Energy, said the verdict is just another sign that a majority of Texans support wind energy and recognize that it can help the state generate more power. The projects, Stengel said, couldn’t be built without the support of residents in those communities.

FPL, which owns 11 wind farms in Texas, is the largest provider of wind energy in Texas and the nation. The company expects to announce another project in Texas early next year, Stengel said.

“I think that clearly we are pleased with the jury’s verdict,” Stengel said. “We think that they based their decision on the evidence. We clearly agree with them and think they got it right. We like Texas very much. Texas needs more power. We are continuing to look for more opportunities for more projects in Texas.”

By the numbers

2,700 megawatts of wind energy could be added to the Texas grid by the end of 2007.

2,631 megawatts of wind energy is currently generated in Texas.

2,044 turbines are operating in Texas.

A wind turbine is 400 feet from the base to top of the blade.

Top wind-energy states
1. Texas
2. California
3. Iowa

SOURCES: ERCOT, American Wind Energy Association

By Bill Hanna
Star-Telegram Staff Writer

817-390-7698
billhanna@star-telegram.com

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