Minnesota Court of Appeals allows Goodhue Wind Farm

In June 2011, the Minnesota Court of Appeals ruled that a permit issued to AWA Goodhue Wind was validly issued. The Minnesota Public Utilities Commission (“PUC”) issued a permit in Fall 2012 that allowed 50 wind turbines to be built about 1,500 feet away from homes. In issuing the permit, the PUC disregarded a Goodhue County ordinance that required wind turbines in the project to be built about 2,701 feet away from residences that are not participating in the project.The Court ruled that the PUC had “good cause” to disregard the ordinance.

The setback required by the ordinance is intended to reduce exposure from turbines. Advocates of the ordinance are concerned about the noise and “shadow flicker” from turbines, which they claim negatively impacts health and safety of the turbines. Shadow flicker is the effect of alternating light intensity caused by the rotating blades of a turbine. See link below for a video demonstrating this effect. The PUC and the Court relied, in part, on a study conducted by an engineering consulting firm on behalf of AWA Goodhue Wind, which concluded that the turbine noise and shadow flicker would be “minimal.” See link below for study. The Court also agreed the PUC’s finding that substantial evidence shows the proposed siting does not present adverse health or safety impacts due to turbine noise or shadow flicker.

The Court of Appeals also scrutinized the impact of the county ordinance. Looking to Minnesota’s 2007 Renewable Energy Mandate, which calls for 25% renewable energy by 2025, the Court noted that the ordinance could interfere with that agenda. The Court stated that the setback required by the ordinance would essentially prevent all wind energy projects in Goodhue County, noting that it is an ideal location for wind development.

With the blessing of the appellate court, AWA Goodhue Wind can now move forward with the rest of the extensive permitting process. The project will reportedly require about $180 million in financing. In addition, a permit for incidental take for bald eagles and completion of an avian and bat protection plan will be required. On top of that, the turbines must be operational by the end of this year to be eligible for an energy production tax credit, which amounts to millions of dollars that will not be there January 1 as the credit will expire after this year.

What this case really demonstrates is how vitally important it is to be fully prepared at the administrative level for review by a court. The courts in this case relied on evidence presented to the PUC on application for a permit, which was appealed. The Court’s approach also raises concerns for future wind projects in Goodhue County, though the Court did make it clear that the county has the authority to enact such ordinances. The question is whether “good cause” exists for a proposed project to disregard the increased setback requirement, which is made on a case-by-case basis. Ultimately, what worries many is that sidestepping the ordinance will give the state too much local control and pit neighbor against neighbor. It remains to be seen whether the case will proceed to the Minnesota Supreme Court.

As the state and nation work to expand our energy options, knowing the ground rules is important for anyone with skin in the game.

Shadow Flicker Video

http://legalectric.org/f/2011/02/awa-ex7-a-20111-59007-09.pdf

About mnfarmbusinesslaw

I am an attorney in Rochester, Minnesota, practicing in the areas of estate planning, probate, and business and farm law.
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