Bills Would Limit Wind Turbine Lawsuits

Industrial wind turbines are supposed to produce electricity. But they have also been producing lawsuits over issues such as noise and the associated negative health impacts they allegedly have on residents.

Now there is legislation (Senate Bills 1123 and 1124) that would restrict “nuisance” lawsuits filed over wind turbines. Under the measures, those who operate or own wind turbines would be exempt from such lawsuits if the turbines were found to be in compliance with state and local rules. In conjunction with this; the measures would also require that plaintiffs who did not prevail with their lawsuits would have to pay all of the court costs.

Sen. Howard Walker, R-Traverse City, introduced the bills on Oct. 22. They have been referred to the Senate Energy and Technology Committee.

Capitol Confidential asked Sen. Walker why he introduced the legislation.

“There are a number of lawsuits being filed and families being paid damages,” he said. “When that happens, the additional costs are passed on to the ratepayers. To me, this is a property rights issue. If someone is complying with local ordinances and state law, I believe they have the right to harvest wind energy on their property.”

In Mason County, 17 residents filed suit against Consumers Energy over negative health impacts, including dizziness, sleeplessness, headaches and other physical symptoms they allege are being caused by turbines in the Lake Winds industrial wind plant near Ludington. Negotiations over a final settlement are ongoing.

Capitol Confidential asked Sen. Walker if his legislation would have pre-empted that lawsuit.

“I don’t believe it would have,” Sen. Walker said.

The Lake Winds industrial wind plant has been declared out-of-compliance according to the Mason County noise ordinance. Consumers Energy took the county to court over that finding, and lost at the circuit court level. The utility has appealed that ruling to the Michigan Court of Appeals.

“I think my legislation would put more of an onus on our local zoning officials to really dig in and make sure their ordinances protect health and safety,” Sen. Walker said. “They are the ones who are supposed to be establishing the rules.

“Basically, I want to respect local zoning,” Sen. Walker continued. “I see it working like GAAMPs (Generally Accepted Agricultural and Management Practices); similar to what’s done in the Right to Farm Act.”

In line with his GAAMPs approach, Sen. Walker’s legislation appears to give the Michigan State University Extension authority to establish the general practices for wind turbines that the state would put in place. Senate Bill 1124 would require the Michigan Public Service Commission to adopt the latest siting guidelines for wind turbines that were published by the Michigan State University Extension.

“Virtually every major wind development in Michigan has caused distress to rural neighbors,” said Kevon Martis, director of the Interstate Informed Citizens Coalition, a nonprofit organization that is concerned about the construction of wind turbines in the region. “This started with the ill effects endured by Kelly Alexander's family from two relatively small turbines in Mackinaw City and Michigan's first abandoned home in Missaukee County. It has continued as we’ve seen people moving to their basements or into rented apartments in Mason or Huron counties.

“The fact that Sen. Walker would put forth a pair of bills that would largely exempt wind developers from local control for the siting of turbines, as well as exempt them from liability for negligent design, paints a clear picture,” Martis added. “Wind development is becoming much harder to sell to rural communities. Wind turbines are no longer a novelty. They are pervasive and wind developers are having a much harder time convincing people that 50- or 60-story tall turbines are scarcely noticeable in our quiet farming communities.”

Capitol Confidential asked Sen. Walker what he thought the chances were that his bills would move through the Legislature this year.

“Well, we have very few session days left, but we also have the lame duck session,” Sen. Walker said. “With so few session days you really couldn’t say for sure that it would move – on the other hand, when there’s a lame duck session, you really couldn’t say for sure that it wouldn’t.”

Sen. Walker also said he doesn’t know whether Michigan’s giant utilities, Consumers Energy and DTE, would support the bills.

“I haven’t talked with them,” Sen. Walker said.

Capitol Confidential asked Sen. Walker about a possible connection between the bills and Marty Lagina, CEO and founder of Heritage Sustainable Energy, which operates industrial wind plants in Northern Michigan.

“I’ve known Marty Lagina a long time,” Sen. Walker said. “He and I worked together on oil and gas development in the late 1970s. Marty has discussed the lawsuit situation with me. I believe this legislation might be a way to address the issue.”

Capitol Confidential asked Lagina if he believes those who claim to suffer health problems from proximity to wind turbines are imaging it, faking it or really being physically affected.

“In my opinion there is no scientific evidence to support the idea that there is some sort of wind turbine syndrome,” Lagina said. “The World Health Organization – which generally seems to recognize all sorts of claims – doesn’t recognize it, the Mayo Clinic doesn’t recognize it, and the AMA (American Medical Association) doesn’t recognize it. What I believe has happened is that when you tell people that something will make them sick, some people will believe they are being made sick.

“There is evidence of this happening with other things when they were new,” Lagina continued. “It happened with radios and with Wi-Fi.”

Capitol Confidential posed the following question to Lagina: “Wouldn’t Sen. Walker’s legislation set up a situation under which wind developers would only have to get local zoning boards to adopt ordinances that are friendly to them once, and then – even if the boards decided they’d made a mistake – that one-time decision would stand forever after?”

“If you build a house on your property and comply with all of the ordinances and standards, should someone be able to come in afterward, change the rules, and then claim you’re no longer complying?” Lagina asked rhetorically. “I don’t think that’s a system that people would want.”

Capitol Confidential asked: “Isn’t that different because your house wouldn’t potentially be impacting the health and safety of your neighbors?”

“Sure, someone’s house could impact their neighbors,” Lagina said. “It could cut off the sun. A chimney that complied with a zoning ordinance could send smoke over to a neighbor. In my opinion, the property owner shouldn’t be penalized if they complied with the rules that were in place when they built the house.

“I think that’s why this [legislation] would be beneficial,” Lagina added. “It would be a clarion call to the townships saying: ‘Hey, you’re in charge of this.’ If some adopt zoning that’s more restrictive than others, I — as a developer – can deal with it. What isn’t fair is to change the rules after I’ve spent time and money complying with them.”

Capitol Confidential asked Sen. Walker if he foresees the same – or similar bills – being introduced in 2015, when the Legislature is scheduled to review the 2008 Energy Bill, which mandated that 10 percent of the state’s electric energy be produced from in-state renewable energy sources, which ultimately meant wind energy.

“That wasn’t my strategy,” Sen. Walker said. “I’ll be working to try to get Sen. Mike Nofs, R-Battle Creek, to bring the bills up for a hearing. But, yes, if the bills don’t move this year; somebody might want to pick them up and introduce them in 2015.”

Wind energy skeptics argue that less than one-third of wind power is actually alternative energy. In Michigan, the turbines can only be counted on to turn an average of 30 percent of the time. The other 70 percent of time, they must be backed up by energy generated by fossil fuels. The 2008 Energy Bill did not include provisions for monitoring whether the “renewable energy” mandate is really reducing emissions or not.