Wind developers retain powers

CASPER — Private wind farm developers will retain the same right to eminent domain afforded to other energy projects, after Gov. Mark Gordon blocked an attempt by state lawmakers this winter to bring back a wind-specific land use restriction. 

Under current state law, companies building energy generation facilities have the right to cite some infrastructure — including power lines used to carry electricity away from wind turbines — on private property, even if landowners say no. 

The Wyoming Legislature barred wind developers, specifically, from using eminent domain in 2010. The moratorium was renewed in 2011 and again in 2013 before it was allowed to expire in 2015. 

House Bill 106, sponsored by Rep. Allen Slagle, R-Newcastle, would have reinstated it until 2032. The bill passed the House of Representatives by a vote of 41 to 20 and the Senate by a vote of 18 to 12 before heading to the governor’s desk. 

Gov. Mark Gordon vetoed it on Feb. 21. 

Since 2015, there have been instances where a wind developer struggling to reach agreement with a landowner has threatened to force a deal through. But there have been no instances where eminent domain has actually been used, according to Isaac Sutphin, an attorney who spoke before state lawmakers on behalf of the American Clean Power Association. 

Sutphin emphasized to the House Agriculture Committee on Jan. 24 that it’s still illegal for a company to assume control of someone’s land without trying to work with them first. 

“Good-faith negotiations,” he said, are built into existing law, which contains “line after line after line of requirements that are imposed upon a company before they can go to the courthouse and even ask to take someone’s property.” 

The goal, he added, is to “get to yes.” 

Backers of the bill wanted to make sure private property rights were protected. The bill’s opponents did, too. 

On both sides, it all boiled down to the same question: Who should have the right to say no to a wind farm? 

Those who believe the moratorium should be reinstated are afraid that, without it, landowners could feel compelled to take deals they otherwise wouldn’t in order to prevent a company from invoking eminent domain. And those who don’t are worried that, with a moratorium in place, any landowner could block development on a neighbor’s property.

“If it’s a third-party wind developer, you know, this is somebody who doesn’t have customers in the state of Wyoming,” said Shannon Anderson, staff attorney for the Powder River Basin Resource Council, a landowners’ group that favored the moratorium. “There’s no public purpose for that use of eminent domain. And with that, you shouldn’t, as a private party, have the public right of eminent domain in that situation.”

In his veto letter, Gordon called eminent domain “a delicate and private issue, which should only be deployed as a last resort because most often one party always prevails at the other’s detriment.” 

But, he added, “it remains an important tool” recognized in the state constitution. 

The duration of the moratorium, Gordon said, gave him pause. So did its focus on wind developers. 

“Because this bill seems targeted at one industry and deprives other landowners of their right to develop the resources of their land, I cannot let it pass into law,” he said in the letter. 

He encouraged state lawmakers to revisit the issue and reconsider their approach in the future.