Texas landowners with turbines sue: developers misled us about noise

Here from the Acoustic Ecology Institute, a story about a group of landowners who are taking legal action against wind power developers, who, the landowners claim, misled them about the noise from the machines on their property.

AE.org - website of the Acoustic Ecology Institute

23 Texas wind farm hosts sue over noise, nuisance

In what may be an unprecedented move, 23 Texans who host wind turbines on their property have filed suit against two different wind farm developers, claiming that companies “carelessly and negligently failed to adequately disclose the true nature and effects that the wind turbines would have on the community, including the plaintiffs’ homes.”
The plaintiffs host hundreds of turbines on projects developed by Duke Energy and E.ON, and as a Duke spokesman noted, they did consent to the placement of the turbines.  However, the lawsuit stresses that the companies told residents the turbines “would not be noisy, would not adversely impact neighboring houses and there would not be any potential health risk.”
This court challenge stands apart from most previous nuisance suits, nearly all of which been filed by non-participating neighbors of wind farms (i.e., local residents who are not hosting turbines themselves).  Most annoyance surveys suggest that wind farm hosts are less likely to be bothered by turbine noise than non-participating neighbors, and many wind projects make an effort to spread the financial benefits to include some non-host neighbors, because of suggestions that broader project participation will increase community acceptance.  In this case, however, the plaintiffs are receiving lease payments and tax benefits that will exceed $50 million over the life of the projects.
Among the plaintiffs are Willacy County Commissioner Noe Loya, who is said to “no longer enjoy sitting outside because of the loud noise,” with turbine noise inside and outside his home “disturbing the peace and making it difficult to enjoy living there.”  Another plaintiff, a local Justice of the Peace, “has difficulty sleeping, cannot have his windows open (and) cannot enjoy the sound of nature, due to loud noise from wind turbines.”  The lawsuit also claims that some residents have abandoned their homes. In addition to noise issues, the suit includes visual impact, property value, and health effects claims.

Read the full story here.

The unfairness of the Green Energy Act: taxes

Raymond Beaudry of the Manitoulin Coalition for Safe Energy Alternatives (MCSEA) sends along this presentation that was made to the Manitoulin and the Islands budget committee this week.
The fact is, there would have to be significant changes to the Green Energy Act  to realize what is proposed in this presentation, but what remains is the unfairness—homes are taxed at a rate higher than wind power projects—and the true extent to which this industry is being subsidized in Ontario.

Here is the presentation:

Municipal Taxes and Potential IWT Revenue

In our township, one hundred acre local farm lots and managed wood lots
without structures are assessed at approximately $26,225 that contribute
to around $81 in taxes.

The wind industry (Northland Power Inc) pays the taxes on property it has
rights of use for in lease agreements. For several years though, still
assessed as farmland, this land once signed over will be used for
industrial purposes.

The 100 acre lots, less the legislated, wind turbine footprint of 2
hectares (4.94 acres) also require wind turbine infrastructure such as
wide right of ways, collector lines, wide access roads, transmission
lines. All of this supporting infrastructure should be assessed at the
industrial rate and the balance of the farm lots remain at the farm
assessment rate.
These lots should be assessed and taxed industrial for the area of
planned use when the lease options for industrial use are signed. This
creates more income for our municipal taxes from highly subsidized multi
million dollar corporations.

As I understand the process, the township does not receive the taxes when
the turbines, buildings, distribution stations and switching stations for
the wind farm are erected. Assessment legislation states that structures
are added to the assessment roll when they “commence to be used”. MPAC
would therefore issue a supplementary assessment from the date the
turbine becomes operational. This is several months of lost industrial
tax revenue for townships.

Another subsidy the wind industry receives is the assessed value of the
turbines. Homes are paying more taxes than a multi million dollar
industrial wind turbine generator. The turbines should be assessed at the
full value as in any other industrial or house construction.

For assessment, the McLean’s Mountain turbines are not 2.5 MWs in size
but are rated by General Electric at 2.85 MW . MPAC states wind turbines
are assessed as per their nameplate capacity. The legislated assessed
value of $40,000 per MW times the 2.85 MW rather than 2.5 mw is an
increase of $14,000 in value up to only $114,000 assessed value rather
than the 2 to 3 million dollar or so wind turbine value.

$114,000 assessed value times industrial rate of .03087360 only produces
$3,519.59 of taxes.
 A 2 million dollar turbine assessment equals $61,747.20. Diff –
 A 3 million dollar turbine assessment, equals $92,620.80. Diff –

Not including the other potential lost tax revenue mentioned previously,
this 24 industrial wind turbine project at even the lower 2 million
dollar turbine cost alone should have rather than the $84,470.16 in tax
revenue for the township, should be around $1, 397,462.60. Difference in
lost potential revenue of $1,312,990.

This influx to the tax base would probably lower the tax bills in half
for everyone in this township.
 The Feed In Tariff for this project is $150 for each MW hour or 15 cents
per kwh and under these FIT contracts they will be paid by all
electricity users whether the province requires the generation or not.
They will get paid to not even generate in electricity surplus scenarios
as currently practiced.

Townships should be receiving their fair share of tax revenue from
industrial development to pay for provincially downloaded costs and
rising expenses that affect township local temporary and full time
employment, operating expenses and every tax payers rates.

Requests to implement fair taxation in relation to renewables and in
particular industrial wind turbines should be sent by our town council to
the appropriate ministries.

This is an issue all ratepayers and taxpayers should be endorsing.
Editor’s note: using the $150/MWh rate, the McLeans Mountain project on Manitoulin will be costing Ontario ratepayers in excess of $21 million per year, or over $400 million over the life of the 20-year contract.Yet, there is no arena in Ontario except for the ballot box, in which issues like this can be discussed.

Melancthon group appeals Dufferin ERT decision

Sanford launches appeal of ERT approval of Dufferin Wind Power


The wind turbine wars have taken a new twist with the filing last week of an appeal of December’s decision by the Environmental Review Tribunal’s decision to uphold Dufferin Wind Power’s Renewal Energy Approval (REA). The appellant is Melancthon resident Dennis Sanford, who had been a party to the ERT hearing, on health issues and a Constitutional challenge. The filing coincided with a Divisional Court hearing of an appeal of another ERT decision, this one overruling Gilead Energy’s REA of a 22.5 MW (9 turbine) wind farm at Ostrander Point, Prince Edward County, near Kingston and Picton, on the basis that the access roads would imperil the habitat of the threatened Blanding’s turtle. Lawyer Eric Gillespie, or his firm, is representing Mr. Sanford and also the Gilead wind farm opponents, Prince Edward County Field Naturalists. In the Sanford appeal, Mr. Gillespie will be fighting to have the ERT decision overturned. In the Gilead case, he is fighting to have the ERT decision upheld by the court. In the Ostrander Point case, the appeal of ERT’s rejection of the wind farm’s approval was launched by Gilead and the Ministry of Environment. Here in Dufferin, the wind farm proponent and MOE will be expected to defend ERT’s decision. The timing of Mr. Sanford’s appeal coincides with Dufferin County Council’s decision to negotiate with DWP for a rail corridor power line easement, rather than to fight a hopeless expropriation battle. Mr. Sanford, in a letter to county clerk Pam Hillock and the warden, has urged the council to delay negotiations, as he is confident of victory in his appeal. “We believe we have a good chance of overturning the ERT’s decision in the Divisional Court, where judgments are based on balance of probabilities and on fundamental justice, not on the impossible, reverse onus test established by the Green Energy Act legislation designed to insure that renewable projects are not refused.
“This is a landmark case, not only in that it is the first to do so, but the lack of fairness inherent in the GEA in its dealings with rural residents, and rural municipalities will be on display and challenged in the Divisional Court,” he said in his letter. The Divisional Court website says appeals must follow the Rules of Civil Procedure, however those apply. In the Ostrander Point appeal last week, the three-member panel of Superior Court justices would not permit Gilead to introduce evidence that had not been brought before the ERT. Justice Ian Nordheimer said written reasons would be given later. The new evidence would have been that the gates to the offending access roads are closed to the public, ergo the roads not a turtle threat, but Mr. Gillespie has been reported as saying Gilead could have brought that information to the ERT, but chose not to. The arguments continued last Wednesday and Thursday.

Link to the story here.

Dufferin County still fighting wind power project: “we have a gun to our head”

UPDATED: Dufferin County, Dufferin Wind return to negotiating table

Wind wars

Dufferin County will return to the negotiating table with Dufferin Wind Power Inc. in hopes of avoiding expropriation. On Thursday (Jan. 23), county council directed staff to continue negotiations to finalize an agreement to grant an easement along the county-owned rail corridor. The agreement will be presented to county council at their Feb. 13 meeting.

Orangeville Banner

Dufferin County will return to the negotiating table with Dufferin Wind Power Inc. in hopes of avoiding expropriation.
On Thursday (Jan. 23), county council directed staff to continue negotiations to finalize an agreement to grant an easement along the county-owned rail corridor. The agreement will be presented to county council at their Feb. 13 meeting.
“It is different from what we’ve been doing,” said county Warden Bill Hill. “But when every avenue we’ve explored – and everyone else has explored – has been ignored and shut down by the province, the only option left for the county was to be faced with expropriation.”
According to the motion, Dufferin County has an opportunity to receive additional compensation and improved terms from Dufferin Wind over what would be granted through expropriation.
The warden explained the county was presented with a new offer from Dufferin Wind.
“There was a meeting with Dufferin Wind,” Hill said, adding details are not publicly available yet. “When the (Feb. 13) agenda is put out, you’ll see what has been negotiated, vs. what will be rammed down our throat by the energy board.”
Dufferin Wind spokesperson Connie Roberts said the company is pleased the county is returning to the negotiating table.
“Until an agreement is reached however, DWPI must continue to pursue expropriation to ensure the project is not delayed,” Roberts said in an email to The Banner. “This being said, everyone with Dufferin Wind is feeling optimistic that a positive outcome will allow DWPI to cease expropriation proceedings after the February 13th Dufferin County Council meeting.”
The Ontario Energy Board (OEB) has approved a leave to construct application from Dufferin Wind to build a 230 kV transmission line from Melancthon to the Orangeville transmission station in Amaranth.
The line will be above ground with the exception of sections in Shelburne and near the south end of the line.
Dufferin Wind has filed an application to expropriate the lands needed for the line. Approval of that application is immanent, according to the recent county motion.
“It’s not a matter of if this is going to go ahead or not. It’s a matter of what are the terms of it going ahead,” Hill said. “We have a gun to our head that says this deal is going ahead.”

Read the full story here.

Ostrander Point appeal: government helping wind biz on the “pathway to profit”

The Times

Here from Wellington Times Editor, Rick Conroy, an opinion on the Ostrander Point appeal. We hear he dropped into the proceedings last week–can’t wait for THAT column.

Friday, January 17th, 2014 | Posted by

Might v. right

It’s an obscenely unfair fight. I expect most people would intervene if they happened upon such a lopsided clash on the street. Or call the police. They would do something. It runs directly against our core sense of fair play. Of justice.
Consider the spectacle on display in a Toronto court room next week. On one side will be a handful of folks more knowledgeable about the nesting patterns of the whippoorwill than the finer points of administrative law in this province.
On the other side of the aisle will be the Province of Ontario, through its Ministry of Environment (MOE), the developer, Gilead Power Corporation, along with the entire Canadian wind energy industry through Can- WEA.
There are billions of dollars at stake in this hearing for one side. On the other, it is the sanctity of the natural habitat of a unique bit of Ontario.
For the developer, this is likely its last shot at salvaging a positive return from this project. This fight has already cost it millions of dollars. Every day Gilead executives linger in a courtroom, a hearing room or its lawyer’s office and not bulldozing roads into Ostrander Point, costs it many thousands of dollars more. This courtroom is likely the end of the road for this project.
Gilead Power is represented by McCarthy Tetrault, led by Doug Hamilton—a partner in the national firm that boasts more than 600 lawyers. Hamilton will be flanked on one side by Christopher Wayland, another partner at McCarthy’s. Wayland’s expertise is appellate litigation, that is, arguing appeals before this very court. On Hamilton’s other side will be associate lawyer Sam Rogers.
A phalanx of other legal resources will surely be just a Blackberry message away.
CanWEA, representing the industrial wind energy sector in Canada, has asked for and received the opportunity to intervene in this appeal. There is much on the line for these developers, financiers and operators next week in Toronto.
For decades, despite lavish subsidies raining upon the fledgling industry, corporate investment largely stayed away from the wind energy business. It was only when the Green Energy Act was passed, lowering, and in some cases eliminating, environmental protections and regulatory safeguards, did investors see a clear pathway to profit.
The game was rigged in their favour. All developers had to do was step up, get in line, do some paper work and then wait for the money to roll in. It was sweet arrangement. They surely knew the gravy train couldn’t last.
Still few expected the Environmental Review Tribunal to go so far off script in Prince Edward County. The decision by the provincially appointed Tribunal to revoke Gilead’s Renewable Energy Approval (REA) sent shock waves through the entire wind industry.
Until then a Tribunal had never done such a thing. Deemed a largely pro forma exercise, some developers had simply proceeded to build their industrial wind turbine projects, even as Tribunal hearings were ongoing. In fact, when the Tribunal released its decision in an appeal of the Kent Breeze project, near Chatham, in the summer of 2011, the turbines were already spinning over the heads of the objecting neighbours.
That a Tribunal would stand on its own two feet and pose serious questions about the impact of industrializing Ontario’s countryside and natural habitats is one thing. That it would actually revoke an approval already granted is a threat to every wind developer holding an REA in this country.
The wind industry has billions of reasons why it should want to overturn the Tribunal’s decision. A trickle of independent thinking could lead to a flood of folks asking serious questions about the cost to the natural world and human health of industrial wind turbine development. The pathway to profits could snap shut just as quickly as it was opened.
Surely the most puzzling lout with their knuckles aimed at PECFN and APPEC next week is the Ministry of Environment. Not just for the obvious reasons that it’s the MOE’s mandate to protect endangered species, rather than hold the door and provide direction markers for profit seekers to flatten them in the name of renewable energy.
No, the most puzzling bit is that the MOE could have peeled off from this melee at any time. The Environmental Review Tribunal is its mechanism. It is the MOE’s safeguard, created to prevent rash, ill considered decisions or unintended consequences. It ought not to have been in the fight at all.
And when this independent panel made its decision, the MOE ought to have boasted that the process worked. That it had provided the protectionthat Ontario residents expect of its agencies. It might have held the Tribunal’s decision up as proof that it wasn’t interested in wind energy at all costs. That there were some things, some lives worth protecting.
Instead, the MOE has lined up with the developer, its corporate lawyers, and the industrial wind energy lobby in its preservation of profits. And against a handful of field naturalists struggling to do all they can to prevent the extinction of the Blanding’s turtle and other endangered species at Ostrander Point.
How is it that elected governments and its institutions can stray so far, so that they become instruments of corporate profiteers.

Save The Oak Ridges Moraine (STORM) Coalition to be Participant at ERT

STORM Coalition (Save the Oak Ridges Moraine)

NEWS RELEASE January 24, 2014

For Immediate Release
STORM Granted Power at First Wind ERT Hearing on the Oak Ridges Moraine
Save The Oak Ridges Moraine (STORM) has been granted participant status at the Sumac Ridge Tribunal Hearing, Tribunal Case Nos. 13-140/13-141/13-142.  This is the first wind turbine project to be approved under the Renewable Energy Approval on the Oak Ridges Moraine.
The opposition to this project spans people from across the Oak Ridges Moraine, local citizens, municipal governments, First Nations, Buddhists, and STORM.  STORM Chairperson, Cindy Sutch will be participating in the hearing on behalf of STORM Coalition.  Sutch states, “the spirit of the Oak Ridges Moraine was certainly felt by everyone at the Preliminary Hearing today.” 
Since 2009, STORM has been expressing concerns with proposed large-scale energy projects being sited on the Oak Ridges Moraine to the Province. Aside from the fact the Oak Ridges Moraine contains a diversity of woodlands, wetlands, watercourses, kettle lakes, kettle bogs, and significant flora and fauna, it is one of the few remaining continuous green corridors in southern Ontario. The remnants of tallgrass prairie and oak-pine savanna in the eastern portion of this ancient landform are globally threatened ecosystems and will be impacted by wind development.
The Oak Ridges Moraine is environmentally sensitive, geological landforms that contains the headwaters of 65 rivers and streams and whose deep aquifer systems provide clean drinking water directly to 250,000 and indirectly to millions more. Due to the topography of the Oak Ridges Moraine, wind developers are attracted to this landscape to install their energy infrastructure projects.
To date, there are six wind turbine power plant installations that have received Feed-in Tariff (FIT) contracts all within the eastern portion of the moraine (east of the Region of Durham). This portion of the moraine provides both terrestrial core and corridor habitat and is a critical refuge for birds, bats, threatened and/or endangered plants and animals, and numerous species at risk.   Sutch added “the trade offs in terms of environmental protection for development is unacceptable and contravenes the spirit of established Provincial Policies.”
STORM was established in 1989 to raise awareness of the sensitivity of the moraine’s ecology to impacts from urban development and other land and resource uses such as aggregate mining, forest destruction and infrastructure projects.  STORM was represented on the two provincial initiatives charged with developing long term management strategies for the moraine, the second which provided advice to the government that formed the basis of the current legislation and policy framework.  The core of the Oak Ridges Moraine Conservation Plan (ORMCP) is the recognition of how important the moraine is to the ecological and hydrological integrity of south central Ontario.
The Environmental Tribunal Hearing will commence on February 24, 2014 in the City of Kawartha Lakes.
Contact: Debbie Gordon
Senior Campaign Manager
Save The Oak Ridges Moraine Coalition
Phone: 905.841.9200