ST. PAUL, MN—Christmas came early this week for several Minnesota farmers when state regulators unanimously rejected a permit for a controversial wind farm proposed by the City of New Ulm, which had threatened to use eminent domain authority for the first time on record to seize the wind rights over the opponents’ property in order to force through the 8-megawatt project.
“It’s a first. They’ve has never denied a wind permit like this before,” said Jeff Franta, a farmer who helped organize the opposition. ”The city utility commission has the intimidating tool of eminent domain and doesn’t have to take ‘no’ for an answer and they didn’t.We’re not interested. It doesn’t belong out here.”
“This decision sends two important messages in our view,” said Annette Meeks, CEO of the Freedom Foundation of Minnesota. “First, rather than bullying landowners with eminent domain powers, city government utilities must work cooperatively with landowners the same as private developers do. Second, the current rush to install wind farms and other green energy projects does not trump private property rights.”
In a case that has attracted national attention among groups monitoring eminent domain takings, on December 21st the Minnesota Public Utilities Commission (PUC) voted 5-0 to deny the New Ulm Public Utilities Commission application to erect five wind turbines in rural Lafayette Township.
It is the first time the PUC has ever denied a permit for a wind farm project, a ruling that sends a clear signal to developers of “green energy” in Minnesota.
“There’s an expectation for these projects to move ahead with developers to engage the communities to get voluntary participation in these projects and land rights are a significant component in the commission’s assessment of a project’s viability,” said Bob Cupit, an expert with the PUC.
New Ulm had acquired easements for 237 acres to erect the turbines, but needed to obtain the wind rights to about 235 acres of adjacent property in the path of the prevailing winds to assure a free flow of wind to the turbines.
While public utilities have fairly broad powers to use government authority to force property owners to sell to meet their needs, experts said the New Ulm plan involved an unprecedented move to expand eminent domain authority to include the seizure of air space on private property for power generation.
In a July 30, 2009 filing with the PUC, Nierengarten, on behalf of the New Ulm Public Utilities Commission, insisted “the development of clean, renewable energy should be the motivating, prudent public policy consideration, not provincial notions of “local control” and the “rural way of life.””If not, Nierengarten added, “it will be necessary for the City of New Ulm to exercise its powers of eminent domain to secure such rights and move this vital project forward.”
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The opponents say they do not object to wind power per se, but have concerns about noise levels, lower property values, and the project’s adverse impact on the landscape and rural atmosphere.
“I think developers are going to pay attention to this and we’re not going to move too quickly with projects until a higher percentage of the land rights are acquired before they engage the formal proceedings for a permit,” said Cupit of the PUC .
Despite the ruling, neither side appears to consider the matter completely settled.New Ulm officials indicated they may continue to pursue the project.Opponents are already working with local legislators on draft legislation that would prevent other landowners from facing the same threat in the future.
“A public utility such as New Ulm cannot have that threat of eminent domain from the start,” said Franta. “Landowners should know from the start that they don’t have to be worried about losing their land unwillingly. Who wants to do business with someone who forces something onto you?”
The case comes at a critical time with Minnesota and the nation fast tracking green energy projects that are often fueled by federal grants, including billions in stimulus spending. Minnesota ranks fourth in overall wind production nationally with 1805 megawatts of wind-generated electrical capacity. Currently, approximately 21 wind energy projects and proposals are on the table statewide, according to the PUC.