Enel wins stay of order to tear down wind farm on Native American land

Enel has won a reprieve in its fight over the fate of a 150MW wind farm built on Osage Nation land in the US, as a judge grants a stay on an order to tear down the turbines while the Italian utility pursues an appeal.

The stay was granted this week by the US District Court for the Northern District of Oklahoma, which ruled Enel could suffer irreparable harm if it was forced to tear down the turbines but was later successful in its appeal.

Enel, through its subsidiary Enel Green Power North America, was ordered early last year by an Oklahoma judge to remove an 84-turbine Osage Wind project from tribal land by December 2025.

Enel has launched an appeal against the ruling issued by the US District Court for the Northern District of Oklahoma and asked the court to stay enforcement of its order while that proceeding runs its course.

Enel argued that it will suffer irreparable harm if the stay was not granted as it would “suffer losses related to the inability to satisfy tax equity partners, damages and expenses related to the termination of the surface leases and other agreements, and the loss of cash flow generated by the project.”

Enel said that the total impact of the ordered removal would be more than $163.5 million. The utility also argued that “if the wind farm is dismantled, it will be nearly impossible to rebuild.”

In its judgment this week, the court said that at least some of the harm Enel claimed it would suffer is “speculative and based on future cash flows that might never be realised.”

But it agreed that Enel would suffer costs associated with dismantling the turbines and concluding surface leases and other contractual arrangements.

As the plaintiff in the proceeding is the US government and the plaintiff-intervenor is the Osage Minerals Council, an “instrumentality of the sovereign Osage Nation,” the court said it is “reasonable to assume that sovereign immunity would present an obstacle” against Enel recovering its losses if its appeal is successful.

The court said that while three other factors Enel had raised in favour of a stay had failed, the considerations are “not equal,” with the likelihood of it suffering “irreparable injury” being among the most critical.

In this case, the court noted the “scale of the wind farm removal” and the likelihood that Enel’s appeal is unlikely to be fully resolved before the deadline to tear the turbines down.

If the stay is not granted, the court said Enel would be required to “complete the costly and potentially irreversible process of deconstructing the wind farm before the appellate court has an opportunity to consider the case.”

For that reason, the court held that granting a stay was appropriate. It did however order Enel to post a $10m bond.