The United States has seen dramatic growth in renewable energy generation over the past decade, especially in the areas of wind and solar. Carbon capture, use and sequestration (CCUS) has also gained prominence as a method for energy companies seeking to reduce their carbon emissions. Geothermal and biogas resources, too, are expanding. In turn, the rapid rise in such development has increased the demand for transmission lines to connect and maintain these projects on the power grid. With increased development, however, comes increased risk of disputes. This article discusses a sampling of recent decisions and pending cases across the United States involving such projects, giving the reader a better understanding of past, present and potential future disputes.

Wind

United States and Osage Minerals Council v. Osage Wind, 2023 (D. Okla. Dec. 20, 2023), involved an 84-turbine wind farm in Osage County, Oklahoma, for which the developer entered into a surface lease covering approximately 8,400 acres on Osage Nation lands.  During construction, the defendants dug holes for foundations and used excavated rocks as backfill.  The Tenth Circuit Court of Appeals had previously held that altering the natural size and shape of rocks in order to use them for structural purposes in the construction of wind turbines constituted mineral development and mining under 25 C.F.R. Section 211.3 and 214.7 and, thus, required a mineral lease covering the land approved by the Secretary of the Interior.  U.S. v. Osage Wind, 871 F.3d 1078, 1091-92 (10th Cir. 2017).  Because the wind developer had failed to obtain such a mineral lease, on remand it was held liable for trespass and conversion.  The key disputed issue was whether the wind turbines constituted a continuing trespass for which ejectment could be awarded.  Finding that the support provided by the backfill was an ongoing trespass that infringed on tribal sovereignty, the district court granted a permanent injunction and ordered ejectment of the wind turbines.  If affirmed on appeal, this case may represent a significant shift in leasing requirements for wind developers on tribal lands.