July/August 2024 Issue

Also in this issue: Wisconsin Supreme Court Upholds Condemnation of Land for Sidewalks     |     Court of Appeals Invalidates PSCW Demand Response Order as Unpromulgated Rule

Restrictive Renewable Energy Ordinances May Be Vulnerable to Legal Challenge

Richard Heinemann | 08.01.24

With the continued push toward development of largescale wind and solar projects, some municipalities have responded by passing restrictive ordinances protecting against perceived threats to local health and agriculture.

Restrictive local ordinances are the leading cause of wind project cancelation and second leading cause of solar project cancelation. (“Survey of Utility-Scale Wind and Solar Developers”, Berkely Lab, January, 2024). At least 19 Wisconsin towns have passed ordinances imposing restrictions on wind and solar development. This is according to the nonprofit organization ​“Farmland First”, which has promoted the use of such ordinances (See https:// www.farmlandfirst.com/new-page‑2).

A lawsuit filed by wind developer Marathon Wind Farm LLC on June 20th targets two of these ordinances. The outcome of the case will test the enforceability of ordinances that are more restrictive than state standards.

The project at issue is a 99 MW wind farm being built by a subsidiary of EDF Renewables. According to the complaint, plans for the facility began in 2017 after research identified the towns of Brighton and Eau Pleine as desirable locations for siting a wind generating system based on the availability of wind, proximity to transmission lines, and community support. The subsidiary executed dozens of leases with local landowners and initiated communications with both towns in 2019 to facilitate development of the project. The complaint alleges that the company has incurred over $5 million dollars in predevelopment costs, all of which would be lost if development is not allowed to proceed under the two ordinances at issue.

In 2023, both towns enacted ordinances setting minimum requirements for the establishment, operation and permitting of wind energy systems proposed to be located in the town. The ordinances impose maximum noise limits enforceable by shut down orders; minimum setbacks; guarantees against property value diminution from the developer; annual compensation to nonparticipating property owners; and insurance requirements. All of these restrictions are alleged by the developer to exceed what is permissible under state law.

Under Wis. Stat. sec. 66.0401, political subdivisions are prohibited from placing restrictions on wind energy systems that are more restrictive than the rules promulgated by the Public Service Commission of Wisconsin (PSCW), unless they are justified by health and safety considerations. The complaint seeks a declaratory judgment from the Circuit Court of Marathon County that the Brighton and Eau Pleine ordinances violate sec. 66.0401 and asks the court to enjoin the towns from enforcing their ordinances.

The litigation is notable because recently there is an almost gold rush atmosphere where developers such as EDF seek siteable land in rural counties with solar or wind development potential and sign up landowners under leases that allow long development lead times. For projects under 100 MW, PSCW approval is not required, so only local approvals are needed. To avoid litigation, many developers negotiate directly with town boards and permitting authorities. The Marathon Wind Farm lawsuit will be closely watched by municipalities and renewable developers alike.

It is important that municipalities developing ordinances intended to protect the health and safety of their residents be cognizant of existing statutory and regulatory standards. With respect to wind systems, Wis. Admin. Code PSC 128 provides detailed rules governing the installation of wind systems and expressly states that political subdivisions ​“may not place any restriction, either directly or in effect” on such installations ​“except by adopting an ordinance that complies with this chapter.”

Section 66.0401(m) provides that political subdivisions may impose a restriction on the installation or use of a solar or wind energy system only if the restriction preserves or protects the public health and safety; does not significantly increase the cost of the system or decrease its efficiency; or allows for an alternative system of comparable cost and efficiency. While many such restrictions, including those of the towns of Brighton and Eau Pleine, are intended to address concerns for public health and safety, current research challenges many claims frequently made about renewable energy systems regarding the dangers they are alleged to pose to humans, as well as to animal and plant life. (See Columbia Law School Scholarship Archive, ​“Rebutting 33 False Claims About Solar, Wind and Electric Vehicles” (April, 2024)); see also, ​“Wind Turbine Siting-Health Review and Wind Siting Policy Update Pursuant to Wis. Stat. sec. 196.378(4g)(e)”, from the Wisconsin Wind Siting Council (May, 2024). Hence, local governments should proceed cautiously when developing restrictive renewable energy ordinances intended to ​“preserve or protect” public health and safety.

This is true for ordinances intended to limit the siting of renewable generating systems or the construction of transmission lines needed to interconnect with such generating facilities. Although municipalities do have authority to regulate their rights of way, including the use by public utilities, the reasonableness of such ordinances may be challenged and invalidated by the PSCW under Wis. Stat. sec. 196.58. (See also Wis. Stat. sec. 182.017 related to transmission utility use.) Local ordinances specifically designed to limit use of right of way expressly to restrict the ability of utilities to interconnect renewable generating resources are unlikely to meet such a reasonableness standard.