Eminent domain on the table for wind farm

Scout Clean Energy has proposed a $300-million Nimbus Wind Facility in rural Carroll County and stated that it has all the leases from willing private landowners necessary for the project to install 43 wind turbines. Some turbines are more than 650 feet tall, primarily on a ridge near County Roads 905 and 920. But there are landowners in the path of the project who are opposed to leasing their land and have refused to sign lease agreements.

In a Facilities Construction Agreement signed November 16 between the regional transmission organization Midcontinent Independent System Operator, Inc., (MISO), the Nimbus Wind Farm LLC and Entergy Arkansas LLC, Nimbus agreed to pay for $2 million worth of upgrades to six Entergy substations on the MISO system.

                “The agreements state that land not owned or leased by Scout or Entergy can be taken by eminent domain,” easement analyst Julie Morton said. “Nimbus has a similar agreement with Arkansas Electric Cooperative Corporation. There is almost nothing that makes people madder than eminent domain. I am concerned this agreement could allow Scout to use Entergy and AECC in order to use eminent domain to take private property for the Nimbus Wind Project.”

Morton said there is insufficient information to determine which, if any, tracts of private land will be condemned; there may be none. 

“We do know that if it becomes necessary, Scout has two entities that will exercise their rights of eminent domain,” Morton said. “This will not serve the general public in any way whatsoever. It is being done solely for Scout’s benefit. People are at risk of having their property taken by eminent domain for a project that will have no benefit for people in Arkansas at all.”

Matt Ramsey, senior communications specialist of Entergy Arkansas, said the Facilities Construction Agreement is Entergy’s standard agreement that any company has to go through to build its own independent transmission line where it is going to interconnect to the transmission system that would impact Entergy’s system. “That is our only involvement with the Nimbus project,” he said.

Scout has waged two successful campaigns recently to ask area residents to protect property rights and ask the Carroll County Quorum Court to oppose a resolution providing setbacks between the wind towers and neighboring properties not involved in the project, and to oppose a one-year moratorium on wind and solar power facilities in the county, which was overwhelmingly defeated by the QC.

Allowing the use of condemnation powers against landowners in Carroll County is at odds with private property rights, Morton said.        

Opponents, including those who believe their property would be affected by noise, flicker effects, impacts to wildlife and potential damage from turbine fires and collapses, have complained that Scout’s marketing campaigns against proposals asking people to lobby the QC were deceptive. One mailer sent out to a number of county residents from Carroll County Property Rights, P.O. Box 520, Green Forest, asked people to protect private property rights.

“The future of our land is in our hands,” the mailout said. “Stop restrictive zoning in Carroll County. This could place burdensome restrictions on your private property.” The flyer doesn’t mention Scout, Nimbus or wind turbines but said that the Carroll County QC is considering adopting new zoning regulations.

Across the country there has been a backlog of getting new green energy production online because of inadequate transmission lines. Another issue is that if existing transmission line capacity were taken up by the Nimbus power, it could leave less capacity for the needs of Arkansas people and businesses.

                Morton was a chief opponent of the Clean Line Energy project that would have used eminent domain to build high-voltage transmission lines to move wind power generated in Oklahoma from western to eastern Arkansas without delivering power to any customers in Arkansas. The project was defeated in 2018 after about eight years of opposition organizing that included 6,000 residents signing petitions against the project. Morton said people did not want their private property taken for a project that was not necessary.

                “This is similar to Clean Line in that they aren’t going to sell the power to anyone in Arkansas,” Morton said. “Scout has been saying all along that they can avoid state oversight by the Arkansas Public Service Commission (APSC) by being a wholesale power provider selling the electricity out of state. All the environmental damage, all the potential condemnation lawsuits, and no one in Arkansas will have any benefits from all of this. Clean Line was not a utility, and neither is Scout. The only reason to build these is money. The whole point of these companies is not to serve the public but to make money.”

Regulated utilities must go through a lengthy permitting process that includes public comment periods before the APSC considers issuing a Certificate of Environmental Compatibility and Public Need (CECPN). Since both Entergy and AECC are public utilities, Morton said she expects that at some point, Scout/Nimbus will have to file something with the APSC and then APSC oversight will begin. 

“From the knowledge I have, there is no way they are going to get this completed without state oversight,” Morton said. “They can’t use the right of condemnation unless they are abiding by state laws and regulations. But we are in such uncharted territory. The problem is the turbines may be built by the time state regulatory oversight happens.”

APSC Director Michael Marchand said that the APSC has no open dockets regarding the Nimbus Wind Facility. Regarding the eminent domain concern, Marchand said typically utilities try to work with landowners to the maximum extent possible before invoking eminent domain.

“To date, there has been no request by Scout Clean Energy seeking a CECPN from the APSC,” Marchand wrote in an email. “As such, no determination has been made by the Commission. Even if a CECPN is not required, other federal or state permitting requirements unrelated to the APSC CECPN process may apply. I make no assertions in that regard.

“Regarding interconnection, the APSC does not issue permits related to interconnection of the project to the grid. However, certain engineering configurations related to the interconnection may be required in order to comply with applicable Commission Rules. Verification of compliance with any applicable ASPC Rules is at the discretion of the ASPC.”

The new agreement with Entergy requires the application to be submitted to the Federal Energy Regulatory Commission. Morton said that might trigger some type of review and a public comment period. “The mere involvement of a federal agency may slow down the process and provide some additional oversight,” she said. 

Scout has said the project would cover more than 9,000 acres of land and generate 180-megawatts of power, enough to power 30,000 homes. The company said the project would provide $14 million in revenue to local property owners over the life of the project, and about $25 million in property taxes. Proponents of renewable energy projects like this argue they are vital to preserve the climate by reducing greenhouse gas emissions from fossil fuel sources of power such as natural gas and coal.