While several states, especially in the Midwest, are taking a more aggressive role in determining the appropriate siting standards for wind energy facilities, the fight currently going on in Wisconsin deserves special attention because of the implications that these activities could have on the future of wind energy development in the state. To understand where the situation currently is, it is worthwhile to take a brief look at its history.
In 2009, the Wisconsin state Legislature passed Wisconsin Act 40 (Act 40), requiring the state's Public Service Commission (PSC) to promulgate rules that specify the most restrictive conditions that a political subdivision (city, town or county) may impose on the installation or use of a wind energy system, if the political subdivision chooses to regulate such systems.
The legislation was passed in an effort to create consistent statewide standards, and to address recent actions by political subdivisions to pass ordinances that would have significantly limited, if not prohibited, wind energy development in their area.
In response, the PSC established a wind siting council, an advisory body comprised of a group of individuals representing a variety of interests within the wind industry, including wind developers and representatives from state and local government, universities, landowners and utilities. After nearly a year of work, the wind siting council forwarded its recommendations to the PSC.
On May 14, 2010, the PSC published the draft wind siting rules (PSC Rule 128). Over the following two months, the PSC held a number of public meetings soliciting comments on the proposed rules. On Dec. 9, 2010, the PSC forwarded the final rules to those legislative committees with jurisdiction over the subjects addressed in the rules. Neither committee made any changes to the rules.
As proposed at that time, PSC Rule 128 specifies requirements pertaining to setbacks for wind energy facilities (which vary based on whether the building is an ‘occupied community building,’ a ‘participating residence,’ a ‘nonparticipating residence,’ a ‘public road right-of-way,’ and so forth), noise criteria (including the ability for a landowner to waive this criteria, such as through a noise easement) and the decommissioning of the wind energy projects.
The rules also say that the political subdivision may require a wind energy project developer to enter into a ‘good neighbor’ agreement. This would include specifying the maximum amount of compensation to be given based on the number of turbines sited within a certain distance of nonparticipating residences, as well as an annual percentage increase in such compensation.
PSC Rule 128 was slated to take effect March 1.
However, in a January special session of the legislature, special session Assembly Bill 9, supported by Gov. Scott Walker, R-Wis., was introduced. This bill made certain provisions of the rules separate from the PSC's recommendations, including those that alter setback requirements.
Significant provisions of Bill 9 include the following:
– Setbacks from nonparticipating properties of at least 1,800 feet;
– Allowing any ‘affected owner’ to comment on rules proposed by the PSC on the siting of wind energy systems;
– Allowing a landowner who has entered into a wind energy lease, easement or other agreement to terminate such an agreement with 10 days' prior written notice; and
– Requiring the PSC to study the impacts of wind energy systems on property values.
As of this date, no action has been taken on Bill 9. Several state news organizations, as well as the American Wind Energy Association (AWEA) and other groups, have issued statements criticizing the bill.
As the effective date – March 1 – for PSC Rule 128 neared, Wisconsin's Joint Committee for Review of Administrative Rules voted 5-2 to suspend implementation of the rules. This suspension triggered a provision of the state's administrative rules review process. This means the rules will either remain as proposed by the PSC without the possibility of suspension, or be repealed and not issued again unless the legislature takes action that authorizes adoption of the rules. The outcome depends on actions that the legislature takes in the coming weeks and months.
The primary arguments of the movement behind suspending (or modifying) PSC Rule 128 appear to be focused on the rights of adjacent property owners whose properties are not included in the footprint of wind projects.
Specifically, the arguments have focused on the depreciation of property values through the placement of wind energy facilities on neighboring properties. Other than Bill 9, however, no proposal has been put forth to the legislature or the PSC with specific language to address these concerns.
AWEA and other supporters of wind energy have focused outreach on highlighting the potential for jobs, economic development and clean energy that may be lost to Wisconsin unless the rules go into effect. These groups have also highlighted studies that counter the arguments that wind energy leads to a decline in property values.
Those close to the situation speculate that the likely immediate result will be to revert to siting as it was done prior to the passage of Wisconsin Act 40 and the promulgation of PSC Rule 128, when political subdivisions were free to impose their own standards. Industry proponents feel that this would be a better outcome than if Bill 9 were to be passed.
Katherine A. Roek is an attorney at Minneapolis-based Lindquist & Vennum PLLP. She can be reached at kroek@lindquist.com.
