T he expansion of wind energy in the An examination of current - PDF document

4 | Construction Law T U E S D AY, A U G U S T 6 , 2 0 1 3 Do Wind Farms Constitute a Nuisance or Trespass? the viability of a nuisance or trespass cause energy. Additionally, given the widespread BY JASON L. RICHEY of action against a wind farm. support among many different constituen- AND JACQUELYN S. BRYAN cies for renewable forms of energy, plain- Special to the Legal PRIVATE NUISANCE tiffs will face an uphill battle in arguing T he expansion of wind energy in the An examination of current Pennsylvania that any such invasion, absent extreme cir- United States over the last decade law and decisions from other states indi- cumstances, is “unreasonable” under has resulted in the development of cates that a private nuisance cause of action Pennsylvania law (such unreasonableness approximately 20 wind farms throughout against a wind farm in Pennsylvania may being determined through a balancing of Pennsylvania. The regulation of these wind not be viable. A private nuisance is a non- the wind farm’s utility to the gravity of its farms has generally been performed by the trespassory invasion of another’s private harm). Finally, even plaintiffs who argue local authorities in whose jurisdictions they RICHEY BRYAN use and enjoyment of its land. In that the wind farm’s invasion was uninten- are located. It is well known that wind Pennsylvania, the invasion must (1) be tional will have to establish that the wind JASON L. RICHEY , a partner in K&L Gates’ farms from time to time make noise, pro- either “(a) intentional and unreasonable, or farm’s conduct was negligent or reckless, or Pittsburgh offjce, maintains an active and broad duce vibrations or create a “flicker” or (b) unintentional and otherwise actionable abnormally dangerous, which would be dif- litigation and arbitration practice and has a focus “strobe” effect (which occurs when the sun under the rules controlling liability for ficult to do. in the areas of construction, real estate and com- is near the horizon and alternating shadows mercial law. negligent or reckless conduct, or for abnor- Cases in other states indicate that nui- of light and dark are reflected by a wind mally dangerous conditions or activities,” sance claims based solely on visual impact JACQUELYN S. BRYAN , an associate in the fjrm’s turbine’s blades), all of which have the and (2) cause the plaintiff “significant should not be successful. For example, Pittsburgh offjce, concentrates her practice in the area potential to be heard or seen on properties harm,” as in Karpiak v. Russo , 676 A.2d 270, T exas courts have held that they will not of commercial litigation, with a particular focus neighboring the wind farm. 272 (Pa. Super. Ct. 1996). According to the recognize private nuisance causes of action in the construction and insurance coverage practice As such, wind farm developers often Restatement (Second) of Torts, “significant based solely on the aesthetic impact of a areas. conduct noise and vibration studies during harm” is that sort of harm “that would be wind farm, as in Ladd v. Silver Star I Power the development stage to minimize noise suffered by a normal person in the com- Partners , No. 11-11-00188-CV, 2013 T ex. and ensure that any noise generated will be ties or to recover damages allegedly caused munity or by property in normal condition App. LEXIS 6065 (T ex. App. 2013), which within local ordinance limits. Additionally, by the wind farm’s operations. In some and used for a normal purpose.” reaffirmed that T exas law will not uphold developers generally attempt to design cases, plaintiffs may even file such a lawsuit Pennsylvania courts should not find that standalone visual impact nuisance claims wind farms to minimize any flicker or simply because they do not like the aes- noise, vibrations or flicker produced by a when homeowners do not like the appear- strobe effect from the wind turbines. thetic look of the wind farm. The two wind farm during operation were produced ance of windmills. Rankin v. FPL Energy , Nonetheless, even if developers take common-law causes of action most likely “intentionally and unreasonably.” Wind 266 S.W.3d 506, 513 (T ex. App. 2008), held these precautions and comply with local to be asserted by neighbors are the doc- farms obviously do not operate “for the that the trial court did not err by instruct- ordinances, wind farms may find them- trines of private nuisance and trespass to purpose of causing” noise, vibrations or ing the jury to exclude from its consider- selves subject to lawsuits filed on behalf of land. However, no Pennsylvania appellate flicker, as in the Second Restatement, but ation the aesthetic impact of the wind farm. neighbors to enjoin the wind farm’s activi- court has yet issued a published decision on rather for the purpose of generating clean Wind Farms continues on 9