Matt Bishop, an attorney representing opponents of the proposed $300-million Scout Clean Energy Nimbus Wind Farm proposed near Green Forest, wrote a letter to County Judge David Writer and Prosecuting Attorneys Tony Rogers and Steven Simmons on April 17 highlighting concerns about Scout’s contracts with landowners to lease property for the wind facility.
“Much of the commentary seems to be tied to the belief that property owners have signed ironclad agreements for the erection of wind turbines on their property,” Bishop said. “Nothing could be further from the truth.”
Bishop attached several documents to his letter that he said illustrate just how little is ironclad about this entire project. One was an “Option and Transmission Easement” between a landowner and Razorback Transmission Solutions, LLC, which is a Scout entity.
“This document is filed in the public records,” Bishop said. “Quite clearly, this is not an agreement that commits Scout or its entity to do anything at all. It is an option, and nothing more. If it is exercised, then it is an easement and nothing more. Exercising the option still does not mean a single thing will be constructed and there is nothing in the option requiring construction. The idea that based on this document Scout, or a landowner, will have some claim for loss based on an unexercised option has no merit at all.
“The second is a ‘Memorandum of Wind Energy Lease and Easement Agreement,’ also filed in the public records. Again, nothing in this document requires Scout or its subsidiaries to erect anything at all. It is a lease of property for a possible use. If Scout were to simply let the lease expire, the property owner would have no claim for loss of income arising from the failure to erect a wind turbine.
“Likewise, as Scout has not committed to erect any wind turbines, it has no claim of interference with any business expectancy. If Carroll County decides to enact a setback of one foot or one mile, that would not give rise to a claim from either party as they have lost nothing, as neither have committed to do any more than lease property.”
Bishop acknowledged that is merely a memorandum of lease and not the lease in full and attached a third document of a complete Scout lease.
“It is very much worth reading in full for an education of how one sided a lease with a multinational entity can be, but I want to draw your attention to Section 13.1., Grantee’s [Scout’s] Right to Terminate: Grantee shall have the right to terminate this Agreement as to all or any part of the Property at any time and for any reason upon ten (10) days written notice to Owner… In no event shall Owner have a right to seek damages against Grantee with respect to this Agreement solely by reason of its termination excepting only the amounts accrued through the date of such termination.”
Bishop said this is not a commitment to do anything other than lease the property, and certainly not to make any payments or build any wind turbines.
“Further, Section 9.3 recognizes that operation of the turbines may be subject to regulation, and Section 10.10 anticipates a government agency may require environmental impact reviews, land use approvals, and various permits for any construction,” Bishop wrote. “There simply is no legitimate basis for the property owner or Scout to make a claim if there happens to be a regulation of wind turbines or the construction of wind turbines. Scout has not committed to erect anything, and to the extent it might, it has recognized that regulation is likely.”
Bishop said that from the documents, there is no commitment to erect a wind chime, much less a wind turbine.
“Finally, two additional sections of the lease are worth noting,” Bishop said. “One, Section 10.13, Waivers, recognizes various nuisances that arise from the operation of wind turbines including noise pollution, something that was tightly regulated in the crypto mining ordinance.
“Two, Section 8.3, Recognition of Dangers, which warns the property owner of ‘the need to exercise extreme caution when in close proximity to any of the wind power facilities’ and then has the owner waive any damages resulting from Scout’s negligence in relation to those facilities. One would think an operation that the operator itself states requires the exercise of ‘extreme caution’ would not be one we should be scared to regulate for safety reasons.”
Efforts to establish setbacks on neighboring property from the towers that are more than 600 feet tall have failed before the quorum court, as has an effort in late 2023 to establish a temporary moratorium on large-scale wind and solar facilities.
Bishop said his letter was intended to clear up some of the fear mongering that seems to have developed around possible claims Scout may make in the event Carroll County dares to impose the kind of requirements other wind projects around the country are subjected to. “While a massive company can certainly be intimidating, fear of foreign entities should not be a reason a government entity fails to act in the best interests of its citizens,” Bishop said.
On Nov. 29, 2023, an article in the Eureka Springs Independent quoted Prosecuting Attorney Tony Rogers as stating the current staff of attorneys has a full plate with prosecuting every case in the county. Rogers said the county would have to hire an outside firm to oppose a large multinational corporation if it decided to sue the county over actions to stop the project. Rogers and Deputy Prosecuting Attorney Steven Simmons said such a lawsuit could be expensive.