Injunction denied in wind case
By Kevin O’Brien
The towns of Eau Pleine and Brighton can continue enforcing their ordinances regulating large-scale wind operations while a lawsuit seeking to invalidate the ordinances proceeds through the court.
Marathon County Judge LaMont K. Jacobson last week denied a motion from EDP Renewables, doing business as Marathon Wind Farm (MWF), for an injunction that would have prevented the town from enforcing ordinances adopted last year that established restrictions on wind turbines and a permit requirement for developers.
Jacobson noted in his decision that the purpose of a preliminary injunction is to “preserve the status quo” while litigation is ongoing, but the only way to do that is to keep the ordinances in place while the case proceeds.
“What Marathon Wind Farm is asking the court to do is to immediately grant the ultimate relief it seeks. And once it has been permitted to proceed in defiance of the towns’ ordinances, what would happen if the towns were to ultimately prevail?” LaMont wrote. “The ordinances would have already been rendered largely meaningless.”
When seeking the injunction, attorneys for MWF stated that the towns’ ordinances have effectively halted any further progress on the company’s plans to build a 99megawatt wind energy operation in Eau Pleine and Brighton. MWF says it has invested over $5 million in the project, having leased more than 12,000 acres of land from 65 landowners since 2017.
MWF claims that the ordinances are “ille-
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gal” because their provisions go beyond what state statute allows. According to administrative code PSC 128, the Wisconsin Public Service Commission has the sole authority to regulate large-scale wind energy projects, but it also states that local units of government may pass rules to “protect the public health and safety.”
In his decision, Jacobson cited case law stating that a temporary injunction may be granted only if four conditions are met. The party seeking the injunction must prove that it is “likely to suffer irreparable harm if a temporary injunction is not issued;” the party has “no other adequate remedy” under the law; the injunction is “necessary to preserve the status quo,” and the party has a “reasonable probability of success on the merits” of its case.
Because granting the injunction would “destroy” the status quo, Jacobson said he did not need to address the other three elements required for an injunction to be issued.
Judge Jacobson also denied a request by Farmland First, a citizens group that opposes industrial wind and solar operations, to intervene in the case. In assessing the group’s motion, the judge said he had to consider four criteria in state law, including whether or not Farmland First’s interests are “sufficiently related” to the outcome of the lawsuit.
Attorneys for Farmland First have said that the group wants to help uphold the validity of the towns’ ordinances, but it also has other interests, such as advocating to preserve the local landscape against the negative effect on “the aesthetic and recreational values of the area,” according to its previous court filings.
Judge Jacobson said that any impact of the court’s ruling on Farmland First’s activities would be “indirect.”
“Regardless of whether these two towns’ ordinances are upheld, Farmland First can continue to engage in advocacy,” the judge wrote. “The court’s ruling will not have such a direct and immediate impact on Farmland First to find that Farmland First would gain or lose by direct operation of that ruling.”
Farmland First had also argued that the court’s ruling will have a “statewide impact” on the ability of other rural municipalities to regulate wind farms, something the group has an interest in as an advocacy organization.
“However, this case is not about the wisdom of the state’s energy policy — it is about the validity of two town ordinances,” Judge Jacobson wrote in response.
Judge Jacobson said that Farmland First’s interests are already being adequately represented by the towns defending their ordinances, and allowing the group to participate as a third-party would create a potential “distraction.”
“Farmland First’s stated intention to use this lawsuit to further its policy goal of hindering or disrupting development of wind farm projects statewide threatens to distract from the legal issues on which the case actually turns,” he wrote. “Such a distraction would cause both prejudice and undue delay.”
Meanwhile, attorneys for the two towns have filed motions to dismiss the case, and MFW’s attorneys have requested a status conference to discuss the motion. A scheduling conference has been scheduled for Jan. 17.
