Gathering “NIMBY” Storm Over Renewable Energy Siting

The siting of renewable energy infrastructure (mainly wind turbines and solar arrays) has become a contentious issue in the US, notably on both coasts and in the Midwest. A post from law firm Husch Blackwell calls it a NIMBY (“Not In My Backyard”) issue and notes we are now beginning to see “legislative solutions” at the state level. Illinois is the latest state to address the issue with a law that, while it doesn’t prevent counties from enacting their own requirements, does say those requirements “may not be stricter than those enforced at the state level.”

In New Jersey, opposition to off-shore wind farm development has become a movement, fueled by local near-shore residents, and a cause celebre with the unlikeliest of bedfellows: humpback whales and Fox News celebrity opinionator Tucker Carlson. As reported in the online publication Governing, humpback whales actually have been washing up on the Jersey shore since 2016, in what the article, echoing a report from NOAA Fisheries, headlines as a “Humpback Whale Unusual Mortality Event … ” It’s not clear how the offshore wind turbines might fit in, although per necropsy examinations, some of  the whales were indeed mortally wounded by rotating blades. Presumably they were ship propellers, however, and not wind turbine blades, which typically are housed several hundred feet in the air.  Overall, the jury is still out on what’s behind the “unusual mortality event,” but in addition ship propellers, “entanglement,” presumably with fishing nets, is another theory. What isn’t theoretical is the antipathy among many on-shore residents toward what they consider interference with the view and general ambience of the near-shore environment by what is clearly an industrial scale installation.

In West Virginia, according to an alert from law firm Babst Calland, twelve lawsuits targeting an existing on-shore wind project were filed on the same day in early February. All twelve assert nuisance claims, alleging that the installation has affected the “serenity, ambience, wildlife viewing and aesthetic nature” of plaintiffs’ property and harmed their “personal mental, emotional and physical wellbeing,”  as well as negligence claims, which look to the citing process. That negligence claim is that the process failed to take into account health effects of the constant sound of spinning turbines. A bill currently pending before the West Virginia Legislature would restrict the scope of public nuisance claims in this arena, according to the Babst Callan post.

Even the Pulitzer Prize winning non-profit site Inside Climate News, generally favorable to renewable energy but known for rigorous reporting, has recognized that tension between climate-friendly energy initiatives and local residents is a real issue, and a volatile one. With regard to the new Illinois law, it notes that local officials are “livid” about it. The post quotes an academic who specializes in land use conflicts over renewable energy development. She concedes that short-term the law is likely “to get a whole lot of wind and solar built,”  but she worries about the fallout. “This is not the way you build bridges between urban and rural areas,” she says. “It’s making that chasm even wider.” – Today’s General Counsel/DR