Burch v. Nedpower Mount Storm, LLC
220 W. Va. 443, 647 S.E.2d. 879 (2007)
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Rule of Law:
The authority of the Public Service Commission to grant a siting certificate for an electric generating facility does not abrogate or preempt a circuit court's common law jurisdiction to hear a private nuisance claim seeking to enjoin the construction or operation of that facility.
Facts:
- NedPower Mount Storm, LLC, planned to construct a wind power electric generating facility along the Allegheny Front in Grant County.
- The proposed facility was to include up to 200 wind turbines, with each tower reaching heights of 210 to 450 feet and having blades approximately 115 feet long.
- NedPower entered into a contract to sell the entire facility to Shell WindEnergy, Inc., upon its completion.
- A group of seven homeowners, including Jerome Burch, lived in close proximity to the proposed facility, at distances ranging from approximately one-half mile to two miles.
- The homeowners anticipated that the facility's operation would create constant noise, a disruptive 'flicker' or 'strobe' effect, and pose a physical danger from broken blades or ice throws.
- The homeowners also believed the presence of the wind power facility would cause a reduction in their property values.
Procedural Posture:
- The Public Service Commission (PSC) granted NedPower Mount Storm, LLC a certificate of convenience and necessity (treated as a siting certificate) to construct and operate the wind power facility.
- Seven homeowners (appellants) filed a complaint in the Circuit Court of Grant County seeking to permanently enjoin NedPower and Shell WindEnergy, Inc. (appellees) from constructing the facility, alleging it would create a private nuisance.
- The appellees filed a joint motion for judgment on the pleadings, arguing the circuit court lacked jurisdiction and that the action was an improper collateral attack on the PSC's final order.
- The Circuit Court of Grant County granted the appellees' motion and dismissed the homeowners' complaint with prejudice.
- The homeowners appealed the circuit court's dismissal to the Supreme Court of Appeals of West Virginia.
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Issue:
Does the Public Service Commission's grant of a siting certificate to an electric generating facility preclude a circuit court from hearing a common law private nuisance claim seeking to enjoin the facility's construction?
Opinions:
Majority - Maynard, Justice.
No. The Public Service Commission's grant of a siting certificate does not preclude a circuit court from hearing a common law private nuisance claim to enjoin the facility's construction. The statutes granting the PSC authority to site electric generating facilities do not contain any express language abrogating the common law of nuisance, and statutes are presumed not to alter common law unless legislative intent is clear. The PSC is tasked with balancing public and economic interests, not with adjudicating the private property rights of adjacent landowners under nuisance law. Therefore, a nuisance action is not an impermissible collateral attack on a PSC decision, as it involves a different legal analysis and different considerations. The homeowners' allegations of noise, 'flicker' effect, and diminution of property value are legally sufficient to state a claim for nuisance that they should have an opportunity to prove in court.
Dissenting - Benjamin, Justice,
Yes, a circuit court should be precluded from enjoining the construction in this instance. The dissent argues that NedPower, as an exempt wholesale generator whose electricity is ultimately sold to the public, is a public utility with the power of eminent domain under West Virginia law. The proper remedy for landowners harmed by the lawful operations of a public utility is not an injunction, but an action for money damages through an eminent domain or inverse condemnation proceeding. Since the homeowners conceded they could not enjoin a public utility with condemnation power, and the dissent concludes NedPower is such an entity, their claim for an injunction should fail.
Analysis:
This decision clarifies that administrative agency approval does not automatically shield a project from common law tort liability in West Virginia. It establishes that unless the legislature explicitly preempts common law remedies, a government permit for a project (like a PSC siting certificate) does not immunize the developer from a private nuisance lawsuit. This preserves a traditional legal remedy for property owners but may increase litigation risk and uncertainty for developers of large-scale industrial projects, who could face court challenges even after securing all necessary regulatory approvals.
