Dismissed: A Blunderbluss of Federal and State Claims - Injury & Tort Law - U.S. Seventh Circuit
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Dismissed: A Blunderbluss of Federal and State Claims

Everyone gets excited about clean energy sources these days. Who wants to be stuck in the coal age when there's wind power to be harnessed?

Several years ago, Winnebago County, Illinois answered the wind power siren song by making wind farms a permitted use within the zoning ordinance without the need for a special use permit.

Since no good deed goes unpunished, Patricia Muscarello sued the Winnebago County Board, the County Zoning Board of Appeals, and some County officials, (along with several affiliated companies that operate wind farms), to challenge the ordinance as a taking.

The courts and the defendants were left scratching their heads with the same question: What's her damage?

Seventh Circuit Judge Richard Posner described Muscarello as a "pertinacious foe of wind farms" and her lawsuit as a "blunderbluss of federal and state claims." Muscarello is concerned that a business will build a wind farm next to one of the three tracts of agricultural-zoned land she owns in the county, and worries that a wind farm would damage her property in a variety of ways, such as:

  • Deprivation "of the full extent of the kinetic energy of the wind."
  • Shadow flicker and reduction of light.
  • Severe noise.
  • Possible "ice throws" and "blade throws."
  • Interference with radar, cell phone, GPS, television, and other wireless communications.
  • Increased likelihood of lightning damage and stray voltage.
  • Increased electromagnetic radiation.
  • Interference with crop dusting.
  • Harm to raptors, compelling increased pesticide use.

Some of those feared harms are potential side effects of wind farms. Some are conjectural. But, since none of these harms have come to pass, the Seventh Circuit affirmed dismissal of her suit.

Muscarello merely challenged the procedure for obtaining permission to build a wind farm. The Seventh Circuit noted that harm caused by a change in the procedural rights of other landowners is too remote to count as a deprivation of property.

According to the appellate court, "At worst, it raises the spectre of some future deprivation; and the due process clause does not protect against spectres."

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