Overcoming obstacles in wind energy development - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 190

parties. Cannon then approached its other potential landowners and offered
the Goldendale Aluminum lease as a template for their leases. “If this
agreement is good enough for Goldendale Aluminum and Wilcox,” Cannon
argued, “you can rest assured that it is good enough for you, too.”
Cannon's strategy worked brilliantly. The majority of the project's other
landowners and their attorneys challenged relatively few lease provisions.
Their relative deference to Cannon's template agreement was partly attrib-
utable to their knowledge that a highly-skilled lawyer had already done
significant lessor-side negotiating and that those efforts were reflected in
the template. Because of this, Cannon was able to spend far less time and
lawyer fees than it might have anticipated to secure most of its project
leases in relatively short order. The provisions contained in Cannon's final
collection of signed leases were also more uniform than they would have
otherwise been.
Competing for wind
The other risk that competing developers posed for Cannon was the possi-
bility that wind turbine wake interference conflicts like those described
in Chapter 3 could arise. Like many jurisdictions, Klickitat County had
ordinances that allowed developers to site turbines relatively close to parcel
boundary lines. The county's safety-based setbacks did not take turbine
wake interference into account and thus created a potential for wake
conflicts with neighboring developers.
Cannon encountered the problem of wind turbine wake interference
on at least one occasion in connection with the Windy Point/Windy Flats
project. The company had leased a tract of land just east of Highway
97, near the center of its project, on which it intended to site multiple
turbines. Cannon then learned that a competitor operating under the name
of Northwest Wind Partners (NWP)—a subsidiary of what is now EDF
Renewable Energy—had leased an adjacent tract where it planned to site
several turbines of its own. If Cannon and NWP each installed turbines
in desired locations on their respective parcels, a wake created by one of
Cannon's turbines would reduce the wind energy productivity of an NWP
turbine, costing the NWP and its lessor tens of thousands of dollars.
When NWP learned about Cannon's intention to install a turbine
immediately upwind of its proposed turbine site, the company contacted
Cannon and threatened to sue the company for nuisance and under other
theories. NWP demanded that Cannon relocate its turbine site far enough
away from the property boundary line to avoid wake interference problems.
Unsure how to respond to NWP's demands, Cannon contacted its legal
outside counsel and asked for advice. What was the likelihood that NWP
would prevail in such a dispute? Was a court likely to hold that Cannon's
operation of an ordinary wind turbine in compliance with applicable
setbacks constituted an actionable nuisance under relevant law? Or was