Litigation Risks in Renewable Energy

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17 January, 2023

David Mayor

When American Scientist Charles F Brush invented the first turbine to harness the power of the wind to generate electricity, he might not quite have appreciated that, over 130 years later, hundreds of migratory birds would meet their doom by absent-mindedly piling into the blades of modern iterations of his machine. Even less on his radar will have been the prediction that some sites in his home country would be subjected to criminal charges as a result, with some windfarm owners incurring over $1/2m per year in bird strike mitigation measures.

He had never heard of "Wind-Turbine Syndrome", a very recent term coined to group together symptoms of headaches, tinnitus, vertigo, psychiatric issues, and even cancer allegedly caused by windfarms and reported by some who live nearby. He is unlikely to have experienced seizures from the "flicker effect" they are said to cause however, these clearly serious symptoms have been the subject of high-profile litigation.

In 2021, a French court recognised the syndrome and awarded the Fockaert's more than 100k Euros for the headaches, insomnia, depression, dizziness, and nausea that they suffered because of, they alleged, the installation of six wind turbines 700m from their home in the South of France. The noise was, apparently, like a washing machine constantly turning, with white flashing lights illuminating every two seconds. The judgment gave credence to the possibility that Wind Turbine Syndrome may be an actual thing, despite peer-reviewed studies in Europe, Canada and the US suggesting that the symptoms were psychogenic "communicated" diseases spread by no more than adverse publicity combined with the extraordinary power of negative expectations. The suggestion that low frequency "infrasound" can cause injury to humans has been a popular rhetoric in the press for decades, and any new technology is always a source of anxiety; who here can remember being told not to stand in front of the microwave, for instance?

The UK Government aims to achieve carbon-neutrality for all electricity sources by 2050, with all electricity to come from 100% zero-carbon generation by 2035. This will require up to 50GW of wind-turbine power, with 5 GW coming from floating offshore deep-sea farms. Solar, nuclear and hydrogen production will also be ambitiously expanded.

With targets for rapid growth comes the push for new technology and a race to the finish. With increased urgency comes the risk of putting to market technology or infrastructure that remains largely untested over comfortably long periods. Companies dealing in renewables can be significantly financially invested, and a failure by a site to perform as expected is likely to result in rising tensions. With sites relying on something as inherently chaotic as the weather, the cause of the shortfalls is often difficult to determine. When you add in factors such as delays to grid connection, and regulatory and political-whim changes, the risk of litigation over concerns both real and imagined is significant.

There is no doubt that renewable energy will feature on an exponential basis in future litigation. We expect to see the usual contractual and regulatory issues time and time again, but most interesting will be to see how the public adjusts to the new world order, and what ailments or losses it will suffer, or claim to suffer, as a result. As the expansion develops, so too will the opportunities for the litigious.

We can take some solace in the fact that, whilst estimations (presumably by those with plenty of time on their hands) of bird deaths by wind-turbine stand at between 10k and 100k per year in the UK, that figure pales in comparison to the 55 million bird murders committed each year by domestic cats. Perhaps complaints of noise-induced cancer and the like will remain minority outliers, doomed to the annals of a strange time of life when humans reacted negatively to the prospect of massive propellors dominating their horizon? Or maybe we will all be wiped out by ground-source heat pumps? Time will tell.

For more information contact David Mayor in our Construction & Infrastructure department via email or phone on 01254 222416. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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