## Facts

- The West Virginia Public Service Commission (PSC) authorized NedPower Mount Storm, L.L.C. to construct and operate a commercial wind-power electric generating facility in Grant County, West Virginia.
- The project contemplated a long, narrow site with up to 200 wind turbines mounted on tall steel towers with large rotating blades.
- After notice and public comment, the PSC found the facility economically beneficial and environmentally responsible and approved it to add generating capacity and diversify energy sources.
- A prior appeal of the PSC order by another group was refused.
- Nearby homeowners living roughly one-half mile to two miles from the proposed turbines sued in circuit court seeking a permanent injunction on a common-law private nuisance theory.
- The homeowners alleged anticipated harms including turbine noise, shadow flicker (“strobe effect”), safety risks (including ice throw and mechanical failure), and reduced property values.
- Defendants argued the nuisance action was an impermissible collateral attack on the PSC’s siting decision and was barred by the PSC’s approval.

## Issues

1. Whether a PSC siting certificate for a wholesale electric generating facility precludes nearby landowners from bringing a common-law private nuisance action in circuit court.
2. Whether regulatory approval and compliance operate as immunity from tort liability for alleged nuisance impacts.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court’s dismissal and remanded.
- The court held that a PSC siting certificate does not preclude or bar common-law private nuisance actions by neighboring landowners.
- The court did not decide whether the wind facility constituted a nuisance; it held only that the claim could proceed notwithstanding PSC approval.

## Legal Principles

- The PSC’s utility-regulatory authority protects the public interest and generally does not adjudicate private property disputes between utilities and neighboring landowners.
- Absent clear legislative direction, PSC issuance of a siting certificate is not a grant of immunity from common-law tort liability.
- Compliance with statutes and regulations is admissible evidence in nuisance litigation but does not, by itself, defeat a private nuisance claim.
- Circuit courts retain jurisdiction to hear private nuisance claims alleging substantial and unreasonable interference with the use and enjoyment of property, even when the challenged activity has been certificated by the PSC.

## Conclusion

PSC certification of a wind-power generating facility did not bar neighboring landowners from pursuing a private nuisance injunction in circuit court; the case was remanded for adjudication of the alleged impacts under ordinary nuisance standards.


Burch v. NedPower Mount Storm, L.L.C., 220 W. Va. 443, 647 S.E.2d 879 (W. Va. 2007)