The expansion of wind energy in the United States over the last decade has resulted in the development of approximately 20 wind farms throughout Pennsylvania. The regulation of these wind farms has generally been performed by the local authorities in whose jurisdictions they are located. It is well known that wind farms from time to time make noise, produce vibrations or create a "flicker" or "strobe" effect (which occurs when the sun is near the horizon and alternating shadows of light and dark are reflected by a wind turbine's blades), all of which have the potential to be heard or seen on properties neighboring the wind farm.

As such, wind farm developers often conduct noise and vibration studies during the development stage to minimize noise and ensure that any noise generated will be within local ordinance limits. Additionally, developers generally attempt to design wind farms to minimize any flicker or strobe effect from the wind turbines.

Nonetheless, even if developers take these precautions and comply with local ordinances, wind farms may find themselves subject to lawsuits filed on behalf of neighbors to enjoin the wind farm's activities or to recover damages allegedly caused by the wind farm's operations. In some cases, plaintiffs may even file such a lawsuit simply because they do not like the aesthetic look of the wind farm. The two common-law causes of action most likely to be asserted by neighbors are the doctrines of private nuisance and trespass to land. However, no Pennsylvania appellate court has yet issued a published decision on the viability of a nuisance or trespass cause of action against a wind farm.

Private Nuisance

An examination of current Pennsylvania law and decisions from other states indicates that a private nuisance cause of action against a wind farm in Pennsylvania may not be viable. A private nuisance is a nontrespassory invasion of another's private use and enjoyment of its land. In Pennsylvania, the invasion must (1) be either "(a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities," and (2) cause the plaintiff "significant harm," as in Karpiak v. Russo, 676 A.2d 270, 272 (Pa. Super. Ct. 1996). According to the Restatement (Second) of Torts, "significant harm" is that sort of harm "that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose."

Pennsylvania courts should not find that noise, vibrations or flicker produced by a wind farm during operation were produced "intentionally and unreasonably." Wind farms obviously do not operate "for the purpose of causing" noise, vibrations or flicker, as in the Second Restatement, but rather for the purpose of generating clean energy. Additionally, given the widespread support among many different constituencies for renewable forms of energy, plaintiffs will face an uphill battle in arguing that any such invasion, absent extreme circumstances, is "unreasonable" under Pennsylvania law (such unreasonableness being determined through a balancing of the wind farm's utility to the gravity of its harm). Finally, even plaintiffs who argue that the wind farm's invasion was unintentional will have to establish that the wind farm's conduct was negligent or reckless, or abnormally dangerous, which would be difficult to do.

Cases in other states indicate that nuisance claims based solely on visual impact should not be successful. For example, Texas courts have held that they will not recognize private nuisance causes of action based solely on the aesthetic impact of a wind farm, as in Ladd v. Silver Star I Power Partners, No. 11-11-00188-CV, 2013 Tex. App. LEXIS 6065 (Tex. App. 2013), which reaffirmed that Texas law will not uphold standalone visual impact nuisance claims when homeowners do not like the appearance of windmills. Rankin v. FPL Energy, 266 S.W.3d 506, 513 (Tex. App. 2008), held that the trial court did not err by instructing the jury to exclude from its consideration the aesthetic impact of the wind farm. Moreover, a plaintiff who "came to the nuisance" (i.e., a plaintiff who purchased property after the wind farm was erected or knew or should have known that the wind farm would be erected) will likely carry a heavier burden in establishing a wind farm's liability in a nuisance claim, as in Rassier v. Houim, 488 N.W.2d 635, 638 (N.D. 1992), which applied the common-law "coming to the nuisance" doctrine to bar a resident's private nuisance claim, and Chase v. Eldred Borough, 902 A.2d 992, 1001 (Pa. Commw. Ct. 2006), which recognized the common-law "coming to the nuisance" doctrine.

In sum, it is likely to be extremely difficult for plaintiffs to show that a wind farm constructed and operated in compliance with local ordinances and other laws constitutes a private nuisance under the law.

Trespass

Similarly, existing case law suggests that plaintiffs are unlikely to be successful in asserting trespass causes of action against wind farms in Pennsylvania. Trespass to land is an intentional tort. A trespass occurs when one intentionally enters land in the possession of another or causes a thing to do so, per the Second Restatement and Bruni v. Exxon, 52 Pa. D. & C.4th 484, 503 (Pa. Com. Pl. 2001). As such, a plaintiff will need to be able to show that the wind farm caused an "ent[ry]" by some "thing" onto its land, and acted with the "desire to cause the consequences of [its] act" or a "belie[f] those consequences [were] substantially certain to result."

As discussed above, wind farms are built for the purpose of creating energy — not intentionally causing harm to neighbors. Developers go through a permitting process and governmental procedures to build and operate wind farms. As a result, it will likely be difficult for plaintiffs to point to a motive or reason or to offer an explanation as to how a wind farm acted intentionally to enter the plaintiff's land, particularly if the wind farm is in compliance with all applicable laws.

Additionally, the intrusion must be a tangible intrusion onto the plaintiff's land. Unauthorized intangible intrusions (e.g., noise, vibrations or flicker effect) are not likely to constitute a trespass. Indeed, harm caused by nontangible objects can, at best, be considered actionable under the doctrine of nuisance, which is a nontrespassory invasion of another's interest in the private use and enjoyment of land. Adams v. Cleveland-Cliffs Iron, 602 N.W.2d 215, 222 (Mich. Ct. App. 1999), distinguished between trespass and nuisance by stating that "recovery for trespass to land … is available only upon proof of unauthorized direct and immediate intrusion of a physical, tangible object onto land."

As such, complaints of intangible invasions such as noise, vibrations or flicker from wind farms are not likely to satisfy the elements of a cause of action for trespass. Moreover, the mere threat of an entry onto the plaintiff's land will almost certainly be insufficient to sustain a plaintiff's trespass claim. Muscarello v. Ogle County Board of Commissioners, 610 F.3d 416, 425 (7th Cir. 2010), found that a resident's nuisance and trespass claims were not ripe, and the resident's fear of "blade throw" was "too metaphysical."

Ensuring Compliance

Wind farm developers should conduct detailed noise and vibration studies during the development stage to ensure they are in compliance with all local noise ordinances and are minimizing any potential impact to neighbors from operations. If plaintiffs attorneys in Pennsylvania (like those in other states) file suits against wind farms based on common-law causes of action, courts should not expand such doctrines to allow attacks on wind farms that are in compliance with the law and offer the state an important and growing source of energy to its diverse energy portfolio. 

Jason L. Richey, a partner in K&L Gates' Pittsburgh office, maintains an active and broad litigation and arbitration practice and has a focus in the areas of construction, real estate and commercial law.

Jacquelyn S. Bryan, an associate in the firm's Pittsburgh office, concentrates her practice in the area of commercial litigation, with a particular focus in the construction and insurance coverage practice areas.