A judge at the U.S. District Court for the Western District of Oklahoma on Oct. 13 rejected on a summary judgment motion an effort by local residents around the Kingfisher Wind LLC project to contend that the wind turbines will cause a nuisance.
The individual plaintiffs to this action own land in Kingfisher and Canadian counties, Oklahoma. Another plaintiff is the Oklahoma Wind Action Association (OWAA). They brought tort claims for anticipatory nuisance against Kingfisher Wind stemming from its construction and maintenance of a wind farm in Kingfisher and Canadian counties, referred to as the Kingfisher Wind Project (KWP). Before the court was Kingfisher’s motion for summary judgment on the issue of OWAA’s standing and a motion for summary judgment on the plaintiffs’ nuisance claim.
Kingfisher is in the business of constructing and operating industrial wind turbines. At issue in this case is the Kingfisher Wind Project, which consists of 149 wind turbines. Plaintiffs contend the wind farm’s construction and operation constitutes an anticipatory nuisance. They allege the wind farm causes and/or will cause adverse health effects, emits noise at a disconcerting level, destroys the natural landscape, interferes with the use and enjoyment of their property, and otherwise constitutes an annoyance due to “shadow flicker” and the casting of light. Plaintiffs sought permanent injunctive relief in the form of a 1.7-mile setback of the wind farm from any property owned by a plaintiff.
The judge noted that while this 2014 case has been pending, this wind project has already been built at a cost of $450 million. The judge, on the one hand, ruled for plaintiff standing.
But Judge Timothy DeGiusti added: “On the record before it, the Court concludes that Plaintiffs have failed to make the required showing of likely harm. Specifically, Plaintiffs have failed to show a triable issue that there exists a reasonable probability an injury will occur as a result of the wind farm’s operation. The harm alleged by Plaintiffs and their experts, at this juncture, is speculative at best, and in the Court’s view, a reasonable trier of fact could not conclude, based on the evidence presented to date, that the shadow flicker or sound/infrasound from the turbines has caused or will cause adverse health effects to Plaintiffs. Moreover, the Court finds that the aesthetic concerns voiced by certain plaintiffs, based on the current record and absent any significant evidence of adverse health effects, are insufficient alone to constitute an actionable nuisance. At this late stage of the litigation, after a full opportunity to conduct discovery and marshal evidence, the injuries cited by Plaintiffs are simply too speculative to constitute harm sufficient under their anticipatory nuisance theory and, as discussed infra, to support the mandatory injunctive relief requested.”