Towns await judge’s ruling in wind case

By Kevin O ’Brien

Later this month, a Marathon County judge will decide whether to block two rural townships from enforcing their wind energy ordinances while a lawsuit filed by a renewable energy company is still pending.

Attorneys representing the towns of Eau Pleine and Brighton have made their case for why the ordinances should stay in effect while a lawsuit filed by EDP Renewables makes its way through the court system.

EDP Renewables, doing business as Marathon Wind Farni (MWF), filed a motion in August seeking a preliminary injunction against the town ordinances, which require energy companies to obtain a local permit before starting construction on latge-scale wind power operations. The company alleges that the ordinances go beyond what is required by the state, which has sole authority under statute to regulate large wind energy systems (WES).

Both sides are now awaiting a ruling by Judge LaMont K. Jacobson, who is expected to issue a decision “on or about Dec. 20,” according to court documents. Judge Jacobson will also decide on a motion filed by Farmland First, a citizens group that opposes wind and solar operations, to intervene on behalf of the townships.

Mark A. Lee, an attorney for EDP, states in a court brief that the company is “reasonably likely — if not certain” to win its lawsuit against the towns, but in the meantime, it is unable to reap the benefits of its multi-million dollar investment.

Remzy Bitar, an attorney representing the town of Brighton, filed a response to EDP’s request for an injunction in October, arguing that EDP failed to meet the requirements needed for the court to stop the town from enforcing its ordinance. Among other reasons, Bitar says that EDP is unlikely to win its case against the towns because Wisconsin law allows local units of government to regulate wind energy operations “to preserve or protect the public health

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or safety.” This phrase, which is included in the Public Service Commission’s Rule 128, has been at the heart of the legal arguments made by the towns and Farmland First.

“PSC 128 leaves open a wide swath of subjects for which local governments may regulate, such as noise pollution or environmental impacts,” Bitar writes.

Bitar also contends that EDP cannot reasonably say that it will suffer “irreparable harm” if an injunction is not ordered, since the town’s ordinance still allows for a wind operation to be built as long as they comply with local regulations.

“MWF also cannot claim harm when it has not yet gone through the process to see how the Ordinance would apply to its project,” he wrote. “Until it applies and follows the review procedures, its argument related to irreparable harm is baseless.”

Jason Prochnow, an attorney representing the town of Eau Pleine, picked up on Bitar’s argument in his own brief filed in October. He noted that EDP’s director of development has previously stated that the company has halted marketing efforts on the Marathon Wind Farm due to the “uncertainty” caused by the ordinances.

Prochnow noted that courts across the country have ruled that injunctions can only be granted if the harm is “actual and not hypothetical.”

“Worry and uncertainty that something ‘might’ happen at some uncertain point in time in the future does not meet the standard of irreparable injury for issuing a preliminary injunction,” he wrote.

In response, Lee called it “nonsense” that EDP must first apply for a permit under the ordinances before claiming irreparable harm. According to EDP’s motion requesting an injunction, the company says it has invested over $5 million in the MWF project, having leased more than 12,000 acres of land from 65 landowners since 2017. These landowners have already been paid a total of $2 million in rent.

“Marathon Wind need not subject itself to further financial loss to comply with ordinances the towns had no legal authority to impose,” Lee wrote.

Lee says it’s clear that the towns’ current ordinances violate state law, and any justifications for doing so are “made up out of whole cloth, disintegrating under the slightest scrutiny.”

“The statute plainly says municipalities may not ‘place any restriction on a WES more restrictive than what is in the PSC’s rules,” Lee writes. “There is no gray area here.”

Lee argues that the ordinances contain “numerous pathways for the towns to unreasonably deny” a permit, singling out a provision that allows the town boards to base their decision on whether installing wind turbines will “conflict” with “the nature or character of the surrounding area.”

“Can changes to ‘nature and character’ mean something as basic as putting a wind tower in a location where there currently isn’t one?” Lee writes.

Farmland First’s request

In response to Farmland First’s request to intervene in the lawsuit on the side of the townships, EDP’s attorneys filed a brief on Oct. 9 saying that the group “brings nothing to the lawsuit” beyond what the towns are already arguing.

“Its own submissions demonstrate it has no unique interests not already represented by the towns, and the interests it asserts are not legally justiciable,” the brief states. “It instead hopes to transform this litigation over the legality of the towns’ plainly illegal ordinances into a referendum on state renewable energy policy. That is neither its right nor its place.”

EDP’s attorneys argue that Farmland First fails to meet the requirements set forth in state statute for a third party to intervene. The filing says the towns are already “actively and vigorously” defending their ordinances, and Farmland First has not demonstrated that the group or its members would suffer any “actual harm” if EDP were to win the case.

“Farmland First has not alleged anyone – itself or its alleged members – owns, uses, or even lives near any land impacted by proposed wind energy systems, nor that anybody would suffer direct, imminent, certain harm should Marathon Wind prevail,” the brief states.

The attorneys contend that Farmland First’s mission to protect traditional farmland aesthetics is already part of the towns’ ordinances, and if the towns were to lose the lawsuit, Farmland First could continue advocating against wind farm operations.

“If the towns lose, Farmland First can still educate, advocate, fundraise, and support litigation against wind energy developers – it just needs to do so differently,” the attorneys write.

Quoting a previous court decision, the brief accuses Farmland First of trying to “highjack this lawsuit” and “turn it into a political referendum” on Wisconsin’s wind energy policy.

Matthew Fernholz, attorney for Farmland First, filed a response to EDP’s brief on Oct. 22, disputing the idea that allowing the group to intervene would make the case “infinitely more complex” and unnecessarily delay the court proceedings.

“Instead, allowing Farmland First to intervene will permit it to represent the interests of landowners who may not be entirely aligned with the towns’ defense of the ordinances in question,” the attorneys write.

Fernholz acknowledges that both Farmland First and the town seek the same outcome – upholding the validity of the ordinances – but while the towns say they are not inherently opposed to all wind energy developments, Farmland First is.

“The towns are purely focused on defending the currently enacted ordinances whereas Farmland First represents landowners in rural central Wisconsin who are opposed to any further development of wind farms,” he writes.

While Farmland First denies that it is trying to turn the lawsuit into a “referendum” on state energy policy, Fernholz says the court’s ruling will set a precedent for what kind of regulations local municipalities are allowed to enact on wind energy operations.

“Because of the consequences for other municipalities in Marathon and surrounding counties, the Court would benefit from the engagement of all parties who oppose and support the continuation of Marathon Wind Farm’s wind energy development in Marathon County,” he wrote.

Fernholz said noted that EDP filed its lawsuit “without even attempting to comply with the Towns’ reasonable democratically enacted ordinances.”

“It now objects to Farmland First’s intervention even though Farmland First has been an active participant in the citizenry’s opposition to the development of wind farms in Marathon County,” Fernholz writes. “Farmland First certainly meets the requirements to intervene as of right under” state statute.