Wind farm lawsuit could have lasting implications in Nebraska
The outcome of a federal lawsuit filed by a wind farm developer against a northeast Nebraska county could have big implications for the future of renewable energy in the Cornhusker state.
North Fork Wind filed a complaint against Knox County in U.S. District Court on Aug. 23, alleging county officials unfairly changed zoning requirements to make the 600-megawatt project economically unfeasible.
According to the lawsuit, which also names individuals associated with a group opposing the wind farm, the Minnesota-based developer began working with the county in 2017, including following regulations adopted in 2020 and amended in 2023.
Earlier this year, however, following a presentation from members of "Wind Watchers," a group opposed to the North Fork Wind project as well as others, the county extended the original 2,000-foot setback from nonparticipating homes it set previously to 6,600 feet — a distance North Fork Wind said was unworkable.
Knox County and the other defendants have yet to respond to the complaint in federal court, but former state energy officials, lobbyists for renewable energy companies and other backers say the case would have wide-ranging and long-lasting impacts in Nebraska.
David Bracht, a former director of the State Energy Office under then-Gov. Pete Ricketts, said the lawsuit comes as Nebraska is drawing increased interest from wind and solar energy companies who see the state's untapped potential, particularly in rural areas.
The legal fight, which comes as elected leaders continue wrestling with how to balance the potential economic benefits of such projects with objections from their constituents, is being closely watched by local and state officials, as well as energy companies nationwide, Bracht said.
"How this suit progresses will indicate whether we as a state are in a position where we can take advantage of this natural resource that has significant economic opportunity," Bracht said. "Or, are we instead going to say we're not interested and we're not open for business?"
Growing potential
Renewable energy is a relatively new industry to Nebraska, despite the state routinely ranking high in its potential for both wind and solar generation.
Nebraska and Kansas were once in a contest to see who could follow Iowa, Bracht said, where wind turbines rising high above cornfields have signaled its frontrunner status when it comes to renewable energy development in the Midwest.
Kansas won that contest, Bracht said, because of Nebraska's hesitation to move forward.
"Our wind is every bit as good, our transmission is just as good, but we are slower to develop," he said. "Today, we're at about half of where Kansas is, maybe less than half, and all those economic development benefits are going to places outside Nebraska."
The Cornhusker state is not out of the race yet, however.
To date, there is roughly 3,647 megawatts of electricity being generated each year from wind and solar developments across the state, which is enough to power nearly 1 million homes annually.
That's enough to rank Nebraska 12th in the country in terms of its electricity generated through harnessing the wind and capturing the sun's rays.
Another 1,000 megawatts of renewable energy generation is "in the pipeline," according to Josh Moenning, executive director of New Power Nebraska, a statewide coalition advocating for pro-renewable energy policies and development.
While there are environmental benefits to wind and solar — renewable energy sources have reduced the state's carbon footprint by 9.6 million metric tons, the equivalent of pulling 2 million cars off the road each year — Moenning said the economic benefits are becoming more clear .
On Sept. 11, at a "State of Clean Energy" summit held at Nebraska Innovation Campus, Moenning said renewable energy developers have invested $7 billion into the state, creating 2,500 permanent jobs and contributing $21 million in annual tax revenue.
"Those are taxes that are paid directly to school districts and local governments and community college districts," Moenning said, offsetting the taxes owed by property owners in primarily rural areas of the state.
In the Allen Consolidated Schools district, for example, the tax revenue generated from the Rattlesnake Creek wind farm — a 101-turbine facility that generates approximately 320 megawatts annually — has resulted in a 30% drop in property taxes for local residents.
Kevin Connot, a former school board member in Allen who is also a renewable energy developer, said the district set its property tax rate at 92 cents per $100 of valuation in 2018 before the Rattlesnake Creek project was completed.
By 2022, the taxes paid by the wind farm — 57 turbines are located in Allen's district boundaries — allowed the school board to slash the general fund tax levy to 63 cents, Connot said.
Homeowners in the Allen school district with a house assessed at $100,000 saw their property tax bills drop by $300 in that time, while farmers with $1 million in land saw a property tax reduction of $3,000.
"That's property tax relief — it's real," Connot said.
Along with the money paid to local governments, landowners who lease ground to wind and solar developers have also benefited, according to Moenning.
Renewable energy companies are paying roughly $38 million to local property owners to lease land for wind towers and solar panels. The Rattlesnake Creek project pays out $2.5 million to local property owners each year.
Ryan Zimmerman, who agreed to have solar panels from the Goldenrod Solar Energy Center built on his family's farm in Pierce County, said the compensation for participating landowners was akin to giving farmers and ranchers "a part-time job they don't have to show up for."
"Solar energy made sense for my farm to diversify our income stream," Zimmerman said.
Rich Lombardi, who lobbies in the Nebraska Legislature on behalf of the Advanced Power Alliance, a regional trade association for solar farm developers, battery storage companies and investors, said the growth has been a win-win for developers and Nebraskans.
"The promise for most of the landowners who get involved in these projects is a level of economic security they've only dreamed of," Lombardi said.
The economic boon to existing landowners, coupled with the demands for clean energy from new and longstanding agribusiness, transportation and technology companies, continues to push development forward.
Across the state, 31% of all electricity produced comes from clean power sources, New Power Nebraska said, with that amount set to grow in the near future as more facilities come online.
"You wouldn't think to this day that 40% of your electricity in Lincoln would directly or indirectly come from wind, solar and hydro, but that's what's happened," Lombardi said.
"With the success comes opposition," he added.
Growing opposition
As the market for renewable energy has grown, in Nebraska as well as across the country, so has the local opposition to those projects .
In Knox County, for example, Wind Watchers, a group that formed earlier this year, pushed county leaders to adopt setback requirements three times longer than what was set just last year, well after North Fork Wind had started development.
Instead of towers being built 2,000 feet from nonparticipating homes — a little more than one-third of a mile — a turbine can only be built if it is farther than 1.25 miles away from the nearest nonparticipating home under the new regulations.
And, going along with recommendations from Wind Watchers, the county now also requires North Fork Wind to carry insurance on each of the wind towers it builds, and to add the county to its insurance policy, even though the project would be built on private land.
Other counties across the state have also taken action — often at the urging of locally organized opponents — to enact what a 2023 report called "exceptionally restrictive" ordinances that effectively ban renewable energy development.
The Sabin Center for Climate Change Law at the Columbia Law School found that nine of Nebraska's 93 counties require wind turbines to be set back at least 1 mile from property lines or dwellings.
In some counties highlighted in the report, the setback requirements go even further.
Buffalo County, for example, adopted zoning regulations last year that require turbines to be built at least 3 miles from property lines and 5 miles from any village or city.
Dakota County changed its zoning in 2021 to require commercial wind turbines be set back 2 miles from neighboring homes, quadrupling its previous requirement.
And Wheeler County adopted changes that require wind turbines to be set back 5 miles from any dwelling, limit the height to 299 feet, and require a distance of half a mile between turbines.
The increasingly stringent changes made in Nebraska counties follow a national trend, according to data tracked by journalist and author Robert Bryce.
The number of rejections and restrictions placed on wind and solar facilities tracked by Bryce has spiked between 2018 and 2023.
In 2018, Bryce recorded a total of 28 projects being rejected or new restrictions being enacted by local governing bodies across the country. Last year, the amount reached 146, according to Bryce, who writes about energy policy and issues.
There have been a total of 34 wind and solar projects restricted or rejected in Nebraska since 2015, according to Bryce's database, with 20 of those occurring after 2020, the proposed wind farm from North Fork Wind being the latest.
Supporters of renewable energy development in Nebraska say local governing boards should continue to have a say in setting the rules for siting and construction of those facilities.
But how those regulations are set must meet reasonable expectations, both for landowners on either side of the issue, as well as the companies hoping to invest in the area, Lombardi and Bracht said.
"I think the question becomes at what point does local control come down to a prohibition of a lawful practice," Lombardi said.
Bracht said regulations should be based on ensuring the health, safety and welfare of the residents of a county.
Adopting lengthy setbacks that prevent some residents from signing agreements with renewable energy companies violates their rights as property owners, he added.
"I don't think it's fair for someone to stop how I use my property as a landowner because they can see it from 5 miles away," Bracht said.
Open for business?
The decision in North Fork Wind's lawsuit against Knox County will set the table for the future of renewable energy development in Nebraska, experts say.
Lombardi said the timing of the amended zoning regulations, after North Fork Wind had begun working on the project in good faith and entered into agreements with landowners to use 45,000 acres, has the appearance of "more of a punitive action than a policy action."
"It is conceivable that you can change the rules, but we're usually pretty conscious of not doing things that are retroactive," he said. "It does have some serious ramifications for future investment in this area."
In particular, Lombardi said the change approved by Knox County negatively impacts landowners, who he said "will take the biggest hit from this." Other landowners who want to participate in the projects will also suffer, he added.
"Those are the people that unfortunately get the brunt of these types of decisions," Lombardi said.
Bracht said he thinks wind and solar developers will stop looking at Nebraska, taking millions in tax payments, compensation for landowners, and thousands of jobs with them, the the court finds the county did not err in amending its regulations earlier this year.
Ignoring the potential Nebraska has in regards to wind and solar generation would be like ignoring the quality of the grass in the Sandhills for raising cattle, Bracht said.
Ultimately, not utilizing that resource will harm rural parts of the state, which in turn will affect Nebraska as a whole, he said.
"What will end up happening is they will go to other places, other states," Bracht said. "What people don't understand is that electricity can be produced and transmitted elsewhere, and the development will go with it."
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