Ever since a Tulsa federal judge ruled against Enel Green Power and ordered it to remove 84 wind turbines built several years ago in Osage County, Enel has been racking up the legal bills.
According to energy and political writer Robert Bryce, the wind energy company is fighting the judge’s order, a ruling that could result in $300 million in costss to Enel if it has to follow through with the removal of the wind turbines.
The ruling was sought by the Osage Nation which controls minerals in all of Osage County and it won the several year long court fight, claiming the energy company did not have tribal permission to construct the wind farm. Enel was in court last month asking the Judge to delay her decision.
Bryce reported the move in his flamboyant style:
“Enel executives in Rome have been shitting kittens since December 20, trying to figure out how they can avoid having to take down the 84 wind turbines they built in Osage County a decade ago. You may recall that on that date, a federal court judge in Tulsa sided with the Osage Tribe in the longest-running legal battle over wind energy in American history. The judge, Jennifer Choe-Groves (who was appointed to the bench by Barack Obama), ruled the Italian company had violated the Osage’s sovereignty and granted injunctive relief, finding that “ejectment of the wind turbine farm for continuing trespass” was justified. As I explained here on December 23, in “Federal Judge Sides With Osage Nation, Orders Removal of 84 Wind Turbines,” the decision is a massive black eye for Big Wind and a stunning embarrassment for a company like Enel that never tires of promoting its “green” credentials. The ejectment of the 84 turbines will also be enormously expensive. Enel has estimated removing the 150-megawatt wind project could cost $300 million and take 18 months to achieve.
Given the stakes, it’s no surprise that Enel is trying to find a way to avoid taking down the turbines. And it has retained a flotilla of super-expensive law firms in its effort. A February 22 court filing on behalf of Enel asking the court to delay the decision to remove the turbines was signed by seven lawyers. Three of them were from Gibson Dunn, which is based in Los Angeles and has about 1,900 lawyers. Two of the attorneys are from the mega-firm Norton Rose Fulbright, a global outfit with more than 3,000 lawyers that does a lot of work for solar and wind companies. One attorney is from Tulsa-based Norman Wohlgemuth, and another is from Albuquerque-based Modrall Sperling. Retaining that much legal firepower could be costing Enel hundreds of thousands of dollars per month. But Enel will gladly spend that much on lawyers to continue the litigation and delay the cost and embarrassment of taking the turbines down for as long as possible.
As Tulsa World reporter Curtis Kilman explained on March 10, the company asked Choe-Graves to approve a scheme that involves “removing backfill material owned by the Osage Nation and replacing it with backfill” that doesn’t infringe on the tribe’s mineral estate. It’s not at all clear how that would work in practice. Further, the tribe and the federal government are having none of it. In response to Enel’s filing, two assistant U.S. attorneys based in Tulsa replied:
faced with the impending prospect of all 84 turbines and the entirety of the wind farm being removed from Osage County, Defendants are desperate to have the Court reconsider the form of injunctive relief it will implement, and focus their Brief on selling the Court on its preferred “Replacement Option.” That ship has sailed.
It’s not clear when the court will rule on Enel’s latest filing, but it’s evident that Enel faces hundreds of millions of dollars in losses if the court follows through on the order to remove the turbines. It also faces huge compensatory damages. In a recent interview, Everett Waller, the chairman of the Osage Minerals Council, declined to tell me how much the tribe would seek from Enel. But he did say the sum “rhymes with millions.”
The trial on the damages begins May 21 in federal court in Tulsa.