RENEWABLE ENERGY:

Wind industry faces 'prairie rebellion' in Kansas county

Local governments are beginning to flex their permitting authority to challenge commercial-scale wind farms, a trend some industry observers say could impede broader federal efforts to expand renewable energy production.

The latest round in the emerging battle between local governments and wind-energy developers occurred last week in Kansas, where the state Supreme Court upheld a Wabaunsee County zoning ordinance banning industrial-scale wind development across 791-square miles of tallgrass prairie that county officials say should remain unsullied by wind turbines and transmission lines. Alma, the seat of the 7,000-population county, sits roughly 30 miles west of Topeka.

Experts say the Wabaunsee ordinance, unanimously upheld by the Kansas court, is a key test of local governments' power to effectively ban large-scale wind farms, as opposed to blocking a specific project or proposal. "This case is unique in that it involves a blanket order," said Ron Keefover, a spokesman for the Kansas Supreme Court.

Wabaunsee County is among a handful of local governments -- from Bay Township, Mich., to Clive, Iowa, to Lincolnshire, Ill. -- that have enacted such bans, either permanently or temporarily, to ban commerical-scale wind development. Yet many more cases are likely to emerge as renewable energy developers, flush with federal grants and tax credits, try to meet the Obama administration's goal to revolutionize the way energy is produced in the United States, with a major emphasis on expanding renewable resources like wind, solar and biomass.

While a number of proposals have been slowed by environmentalists concerned that new energy plants and associated infrastructure will destroy valuable plant and wildlife habitat, most of those challenges involve the siting of turbines, solar arrays or powerlines on protected lands such as parks, wildlife refuges or wilderness areas.

The Wabaunsee County zoning law, by contrast, targets the development of wind projects on private lands, something industry representatives and others say could set a dangerous precedent.

Broader implications

"What we could be seeing here is the first chink in the armor of private property rights" as it relates to wind-power development, said Eric Bearse, a spokesman for the Wind Coalition, a group of energy companies and advocacy groups supporting what they consider responsible wind-power development in the southcentral United States.

That chink is "potentially problematic" for renewable energy development from the Midwest to the East Coast where most land is privately owned, said Benjamin Israel, an energy transactional lawyer at the Philadelphia-based law firm of Duane Morris LLC, which represents wind, solar and other renewable energy developers.

"I would say there's a growing sophistication among wind-power opponents to use various tactics to delay or prohibit commercial-scale wind projects throughout the U.S.," Israel said.

Such strategies could become more apparent in states like Kansas, which has become a magnet for wind-power developers. According to recent statistics from the American Wind Energy Association, Kansas' 450 megawatts of newly installed wind generation in 2008 trailed only three other states: Texas, Iowa and Minnesota.

But it is not just a problem for Middle America.

Frank Maisano, an energy specialist at the law firm Bracewell & Giuliani, which represents wind-power developers in the mid-Atlantic, said officials in western Maryland's Allegany County all but killed a proposal to build 25 turbines on a local mountain crest by adopting retroactive zoning requirements limiting where the turbines could be sited.

The project, sought by Pennsylvania-based U.S. Wind Force LLC had already obtained two building permits to start construction, but the Allegany commissioner's zoning changes "made the project unworkable," Maisano said.

Of course, local officials are entitled to pass laws that preserve landscapes and protect community standards for development. But, Maisano said, by rejecting clean energy development, communities risk undermining their long-term economic stability.

"I think it's a stupid policy," Maisano said of zoning ordinances aimed at banning wind farms.

As for the Kansas case, Maisano said the issue is less about the Supreme Court's decision to uphold the ban than the local officials' decision to impose it in the first place. "It seems to me that in Kansas if that county commission wants to take that approach, they're missing a great opportunity," he said.

Slowing big wind

But Wabaunsee County's path to banning large-scale wind farms was not a knee-jerk response by a few elected officials, nor was it based on the complaints of a few property owners who resisted the idea of seeing wind turbines out their back windows.

Rather, officials say, Wabaunsee's three-member board of county commissioners saw as early as 2004 that their county was going to become a bull's eye for wind-power development. The Department of Energy considers east-central Kansas, where Wabaunsee County is located, to have good wind-power potential, and a number of projects had either been built or were proposed for neighboring counties.

During the course of 54 public meetings on the proposed zoning changes, the commission heard overwhelming testimony from county residents who feared that a glut of wind turbines, some towering as high as 425 feet, would ruin the character of the Flint Hills, one of North America's last remnants of native tallgrass prairie.

"They didn't want them because of the general notion that this would be an eyesore," said David Stuewe, the county's zoning administrator.

So in 2004 county law was changed to restrict wind turbine height to no more than 120 feet -- roughly twice the hight of a standard utility line pole -- and to limit turbine density to no more than one per every 20 acres.

Beyond the concerns about unsightliness, however, commissioners were motivated by a desire to preserve the native tallgrass prairie -- which has been reduced from 140 million acres a century and a half ago to 6 million acres today in Kansas, Oklahoma and Nebraska. Most of the habitat loss has come with expansion of agricultural lands over the last century.

Ron Klataske, executive director of Audubon of Kansas, said he supports Wabaunsee County's efforts to save the Flint Hills prairie and its remaining species, including the federally threatened greater prairie chicken, from new forms of development. Moreover, he said he hopes the Kansas Supreme Court's decision will embolden other counties to take similar steps.

"We as an organization favor renewable energy, but we could no more support wind-power development in the Flint Hills than we could if it was being proposed on the Arctic Plains," Klataske said. "We hope this [decision] will continue to send a signal to industrial wind-power developers that they need to be sensitive to site selection."

Remaining issues

But the decision also raises some complicated constitutional questions that could have implications for domestic energy development and the ability of local governments to regulate it. The Kansas Supreme Court has agreed to hear those arguments in briefs and oral arguments due in the coming months.

Among the arguments to receive further review are claims by property owners and industry representatives that the county violated the U.S. Constitution's "takings clause" by prohibiting wind-power developers from entering agreements with private landowners. Several Wabaunsee County property owners had obtained written agreements with wind-power developers that turbines would be built on their land if the firms decided to build in the region.

Moreover, industry lawyers argue that the county ordinance violates the Constitution's commerce clause by interfering with interstate transfer of goods and services. In legal documents, they argue the commission's action "is no different than banning all oil and gas wells in Wabaunsee County and preventing use of mineral interests."

Attorneys for the county, however, argued that to prove a violation of the Constitution's takings clause, wind-power developers "must demonstrate a deprivation of all economic beneficial use of the parcel as a whole, not just their 'discrete segment' of wind rights."

Bruce Waugh, an attorney and Wabaunsee County ranch owner who testified at public meetings in favor of the countywide ban, said he believes the county will prevail, particularly since the court has already ruled that the ordinance met the state's statutory requirement for reasonableness.

"That's probably the biggest impact of this case," Waugh said. "A ruling that it was not unreasonable to prohibit [wind farms] clearly puts to bed the notion that counties cannot keep them out."

But, he added, "I can see why wind developers would be very concerned by all this. For them, maybe they are not accustomed to people saying it's not the most environmentally favorable thing to build a wind turbine. But the evidence in Wabaunsee County shows that doing so would do more environmental harm than good."

Scott Streater writes from Colorado Springs, Colo.

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