Precedent cases won against utility

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Wind turbine operators have won victories in two court cases brought against a north German utility. In both cases Schleswag had attempted to manoeuvre its way out of buying all wind energy generated in its service district, effectively putting a limit on wind generation in the region. The utility, backed by the huge might of giant Preussenelektra, is refusing to admit defeat, though, and is prepared to appeal both rulings made by the court at Itzehoe.

The first case, from October 1995, was brought against Schleswag for claiming it had no grid capacity free to connect further wind turbines. A test case brought by a single turbine operator resulted in a positive verdict for the plaintiff on July 15, to the delight of a large number of potential operators who had been waiting to hitch up to Schleswag's grid.

After listening to expert witnesses on grid capacity in the region, in particular the University of Dortmund, the court ruled that Schleswag had no right to refuse grid connection of wind turbines provided the developer agreed to allow their disconnection if the grid was overloaded. This would require installation by the developer of an automatic mechanism on each turbine allowing it to be disconnected according to a fixed priority, or merit order.

Acting for the plaintiff, Ernst-Erich Warnecke, of legal firm Warnecke, Balzer and Nagel, says the likelihood of a turbine having to be turned off is about once in 30,000 years. He predicts that most operators will agree to install the switching mechanism at a cost of about DEM 10,000 a turbine.

The second case, again handled by the Itzehoe court, was heard in February. It was filed by a second plaintiff after Schleswag had refused to pay for power taken from the wind turbine and subsequently sold to end consumers since September 19, 1996. The utility had decided to withhold payment until the generator signed a sales contract, says Warnecke, who also handled this second case The generator had refused to sign the contract because Schleswag included a clause restricting its purchase of the wind plant's output to customer demand.

"This would have allowed the utility to side-step an important element of the Electricity Feed Law -- that the wind power a utility is not in need of must be passed to the next utility up the hierarchy of supply," says Warnecke. In Schleswag's case this is Preussenelektra.

On June 24 the court ruled that Schleswag, which had already profited from sales of the wind power in question, must pay up. Warnecke adds that it was evident the court believed renewables should have priority over other energy sources and that local wind power should be given precedence over power imported from Denmark or Norway. Schleswag has notified it will appeal the decision to the Schleswig-Holstein Supreme Court.

Meantime, Warnecke, Balzer and Nagel is handling other cases against Schleswag, including a conflict over a transformer station at Marne built by the utility. A ruling is to be sought on whether the utility is allowed to pass on the costs of the transformer station to about 80 wind turbine operators, while retaining ownership of the station. "The main aim of the utilities in all this is to demoralise the wind industry and stop the installation of any more turbines," says Warnecke.

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