Burch v. Edpower Mount Storm, Llc.

647 S.E.2d 879 (2007)

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Nature of the Case

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Facts

The Public Service Commission (PSC) granted D, a certificate of convenience and necessity to construct and operate a wind power electric generating facility. D has entered into a contract with Shell WindEnergy, Inc., to sell the entire facility to Shell upon its completion. The wind power facility will be located on a site approximately 14 miles long with an average width of one-half mile. It is to include up to 200 wind turbines. Each turbine is to be mounted on a steel tower approximately 15 feet in diameter and 210 to 450 feet in height, and have three blades of approximately 115 feet. Ps live from about one-half mile to two miles from the projected wind turbines. Ps filed a complaint seeking to permanently enjoin Ds from constructing and operating the wind power facility on the basis that it would create a private nuisance. Ps claimed that they will be negatively impacted by noise from the wind turbines; the turbines will create a 'flicker' or 'strobe' effect when the sun is near the horizon; the turbines will pose a significant danger from broken blades, ice throws, and collapsing towers; and the wind power facility will cause a reduction in Ps' property values. Ds claimed that a circuit court has no jurisdiction to enjoin, as a prospective private nuisance, projects authorized by the PSC, and that a private party cannot collaterally attack a final order of the PSC by means of bringing an injunction action in circuit court. The circuit court granted Ds' motion for judgment on the pleadings and dismissed Ps' action with prejudice. The court held that it has no jurisdiction to enjoin the construction of a project that was approved by the PSC; most of the activities constitute a public rather than a private nuisance; a prospective injunction is not a proper remedy in this case because the wind facility is not a nuisance per se and does not constitute an impending or imminent danger of certain effect; and the PSC's approval of the facility collaterally estops Ps from challenging it in circuit court. Ps appealed.