Wallaces Farmer

Contracts with wind energy companies contain more restrictions on landowner rights than you might realize.

November 15, 2019

3 Min Read
wind turbines i field
KNOW RISKS: Consider the legal ramifications before signing a contract allowing wind turbines on your land.

Wind energy companies are a profit-first business with no regard for farmers or agriculture, as evidenced by their disregard for the greatest soils in the world with their choice of placement for wind turbines and related structures. For the sake of your children and grandchildren, do not sign a one-sided easement contract with its long-term ramifications. Common factors in easement agreements are:

Airflow restrictions. They disallow you to construct a building or plant a tree that may interfere with airflow. They restrict hunting. The easements run with the property, affecting its value if you sell or how your heirs want to use the land. Easements can be sold and resold. The developer can grant a co-easement and/or sub-easements, and can separate the easement, licenses or other similar rights without your approval.

Developer’s decisions. The developer decides if you get a turbine, transmission lines or other infrastructure. You are not guaranteed a turbine and its related payments; you are granting the potential of a turbine. The developer decides the location or number of turbines and access roads, not the landowner.

No trial by jury. You give up your right to trial by jury. You agree to indemnity, meaning that you defend, indemnify (protect them from loss), and hold harmless the wind developer. You agree to confidentiality; you and your relatives are not to inform anybody about the financial terms, product design, operations, construction, power production or your experiences with the company.

Setback waiver. Your contract may include a memorandum with a waiver to any setback agreements. Also, your land may be put at risk for a mechanic’s lien if the developer fails to pay a contractor.

Beware of other ramifications

You may be named in a tort lawsuit for claims of injury or harm by those who live near wind turbines placed on your property. Tort law is regarding negligence, nuisance and trespass. The aspects of tort lawsuits involve the following: personal injury (adverse health effects), property damage (ice throw, water flow and tile damage, fire) or devaluation in property value, noise (including infrasound), communication signal interference, destruction of viewshed, flicker, shadow, electromagnetic field, and stray voltage.

In a case where the wind energy company holding the lease fails or if a tort lawsuit is won by the plaintiff, you as landowner may be held liable for damages.

You may be held liable for a private nuisance claim from a neighbor due to interference with your neighbors’ right to use and enjoyment of their property. You may be held liable for a public nuisance claim for unreasonable activity that affects the entire community such as public health, safety and comfort.

You may be held liable for a federal crime for the death of wildlife or interfering with their habitat. Eagles, migratory birds and endangered species are protected by the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the Endangered Species Act.

An easement contract may affect any farm or conservation programs in which you participate. Industrial wind turbines will likely affect your federal estate tax valuation. The easement is an asset and used as collateral by the developer. They may not permit you to exit the contract even if they are not exercising their use of your land.

Before you buy or rent farmland, do a title search to discover if there is a wind easement, covenants or agreements that will affect your use. Easement contracts have many pitfalls. Read and understand them thoroughly. Protect yourself and your heirs; do not sign one with a predatory wind energy company.

Brenneman and husband Matt are seventh-generation farmers, operating near Parnell in Iowa County. They are active in the Iowa County Wind Energy Education effort. Kim can be contacted at [email protected].


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