THE UNITED STATES has seen dramatic growth in renewable energy generation over the past decade, wind and solar in particular. Carbon capture, use and sequestration (CCUS) has also gained prominence as a way for energy companies to reduce their carbon emissions. Geothermal and biogas resources are expanding as well.
In turn, the rapid rise of such development has boosted demand for transmission lines to connect and maintain these projects on the power grid. With more development comes more risk of disputes. A sample of recent decisions and pending cases across the U.S. involving such projects illustrates the kinds of legal battles already being waged—and hints at more of the same to come.
Wind
United States and Osage Minerals Council v. Osage Wind (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 as structural support for wind turbines constituted mineral development and mining under federal law and therefore required a mineral lease covering the land approved by the Secretary of the Interior. Because the developer had failed to obtain such a lease, on remand it was held liable for trespass and conversion.
The key point of contention was whether the 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.
In Ehlebracht v. Crowned Ridge Wind II (2022), a wind farm developer sought a permit from the South Dakota Public Utilities Commission (SDPUC) to construct a 132-turbine wind farm. Several individuals objected, but the application was ultimately approved. The Supreme Court of South Dakota held that SDPUC was not required to regulate “minimal adverse effects”; that the imposition of regulatory limits (noise levels, for example) on a case-by-case basis did not violate intervenors’ equal protection rights; that the shadow cast by the turbines was not a “light nuisance”; and that no taking (through inverse condemnation) had occurred because there was no physical invasion of the intervenors’ property. This case provides a helpful overview of the types of claims that developers of wind farms on private lands can face.
Two cases concerning offshore wind, challenging large wind farms to be located off the coast of New England, have been filed recently—both related to their purportedly adverse effects on marine animals. In Save Long Beach Island et al. v. U.S. Dept. of Commerce (2024), the district court dismissed as moot plaintiffs’ challenge to a wind farm in waters along New Jersey and New York because the incidental take permits at issue, which allegedly excessively affected humpback whales and North Atlantic right whales, had expired. The plaintiffs were given 45 days to file an amended complaint.
Similarly, in Green Oceans et al. v. U.S. Dept. of Interior (2024), the plaintiffs’ suit challenges the Bureau of Ocean Energy Management’s (BOEM) approval under various federal environmental statutes of two large wind farm projects off the coast of Rhode Island on the basis that BOEM failed to adequately consider the projects’ effects on climate change, federally protected species and marine habitat. This case remains pending in the early stages of litigation.
Solar
Lyle v. Midway Solar (2020), out of Pecos County, Texas, was one of the first cases to address the interplay between solar energy and mineral development. The mineral owners alleged that a solar array (covering approximately 70% of the surface estate) impaired their ability to drill for oil and gas beneath the surface. Critically, however, the mineral owners had never entered into any oil-and-gas lease nor demonstrated any plans or ability to develop the mineral estate.
The Texas court of appeals held that the mineral owners failed to trigger application of the accommodation doctrine, under which the surface owner carries the burden to show that (1) the mineral owner’s use of the surface completely precludes or substantially impairs the surface owner’s existing use, and (2) there is no reasonable alternative method available to the surface owner by which the existing use can be continued.
This case has been frequently referred to as a reason for solar developers to collaborate with mineral estate owners in advance to obtain surface waivers or accommodation agreements, or to set aside a reasonable amount of the surface for future development of minerals (i.e., drilling islands).
In In re Application of Alamo Solar I (2023), the Supreme Court of Ohio rejected challenges by citizen groups and residents with respect to two large solar farms. In various forms, the plaintiffs contended that the Ohio Power Siting Board, which is vested with the power to authorize commercial solar farms contingent upon compliance with certain criteria, failed to comply with its own regulations regarding noise, visual impacts, landscape, effects on wildlife and flood control. Emphasizing that the court’s role was not to second-guess the evidence so long as the agency’s determinations were reasonable, the court rejected the plaintiffs’ claims. This case helps frame how disputes over renewable energy projects in states with siting or permitting authorities may be decided.
CCUS and Storage Development
Two cases out of the Lone Star State are worth noting. Myers-Woodward v. Underground Services Markham (2022) involved a dispute over ownership of an underground storage cavern created by salt production. Acknowledging a split of the authority, the court of appeals held that the surface owner, not the mineral owner, owns all nonmineral molecules of land, including the cavern at issue. A petition for review of this case is pending before the Texas Supreme Court, but it provides important lease-rights guidance for those seeking to secure underground storage of carbon dioxide, natural gas or other substances.
Iskandia Energy Operating v. SWEPI (2023) concerned a dispute over whether migration of large volumes of injected wastewater could constitute trespass by a deep-rights producer against a shallow-rights producer that claimed its wells had been damaged from “swamping.”
Reversing the trial court’s orders excluding the plaintiff’s expert testimony and granting the defendant’s summary judgment, the court of appeals held that Texas law recognizes a trespass claim in the oil-and-gas context based on an unauthorized interference with a lessee’s existing mineral development rights so long as the injury is not outweighed by competing interests. A petition for review of this case is also pending before the Supreme Court of Texas—an important decision to monitor by entities engaged in underground injection operations.
Transmission Lines
In Tohono O’odham Nation et al. v. U.S. Dept. of Interior et al. (2024), the plaintiffs allege that the Bureau of Land Management (BLM) violated the National Historic Preservation Act (NHPA) and the Administrative Procedure Act (APA) in issuing permits to the SunZia Southwest Transmission Project for construction of a 520-mile transmission line across the San Pedro Valley for the purpose of delivering primarily renewable energy from New Mexico to markets in Arizona and California.
The plaintiffs seek to vacate the permits and halt construction based on alleged harm to historic and culturally significant properties, flora and fauna, and water sources sacred to Native American tribes. This case remains in its early stages but is typical of the tension that has arisen in recent years between renewable energy developers and private landowners.
Geothermal
In Burning Man Project et al. v. U.S. Dept. of Interior et al. (2023), the plaintiffs allege that BLM violated the National Environmental Policy Act, the Federal Land Policy and Management Act, the NHPA and the APA in issuing permits approving the Gerlach Geothermal Exploration Project in Washoe County, Nevada, near the site of the popular Burning Man festival, hot springs and Summit Lake Paiute Tribe lands. Central to the plaintiffs’ claims is that the agency failed to genuinely “stop, look and listen” to the tribe’s concerns, undervalued or ignored the area’s unique dark-sky, astro-tourism and hydrogeology assets, and granted a permit despite the developer having done no more than “plan to make a plan” for water monitoring. After the lawsuit was filed, officials in Washoe County revoked the project’s permit.
Conclusion
These cases represent only some of the recent disputes involving renewable energy and energy transition projects. They demonstrate that such development has created and will continue to create clashes between private landowners and developers, mineral and surface estate owners, competing mineral interest owners, tribal sovereignty and public and private interests, wildlife and human life, and environmental groups and regulators.
These disputes often arise during the early stages of a project’s development, but they can also occur after a project has already been completed, which creates enhanced risk of loss for developers and owners. Not all states have permitting regimes for renewable development, as outlined above with the contrasting landscapes in Texas and Ohio. These varying regulatory backdrops can also have major effects on whether (and how successfully) a project is likely to be challenged.
