Anti-Green Energy Non-Profit Launches Legal Defense Fund

FayCoSaysNo, the group opposing green energy in Fayette County, has created a “Community Defense Fund.”

Tammy Jo McCleney, the leader of the group, announced the creation of the fund on social media last Wednesday, July 31.

Flatonia attorney Alex Hernandez teamed with the group to create the fund. Hernandez said the fund aims to help property owners bring legal action against neighbors for “nuisances” related to green energy.

“I think landowners in Fayette County are in an interesting position when it comes to fighting green energy, whether that be a battery storage facility, a wind facility or a solar farm,” Hernandez said in an interview with the Record last Thursday. “Unlike many of the regulatory bodies that oversee things, there is none for going to a regulator, a commission or an administrative body to challenge one of these things. Or if you just had questions about them.

“That leads to the question of ‘What can you do if you truthfully think this is a harm to you?’” Hernandez said. “I started to look at this, and got word that this was becoming an issue. It’s very interesting because private nuisance law is so underdeveloped in Texas.”

Hernandez cited a 2016 opinion from the Texas Supreme Court that suggests questions of what constitutes a nuisance are “highly factual” and might be best settled at the local level – through a district court jury or judge acting as a facts-finder.

“This is a working theory that you can present the idea of what constitutes a private nuisance to the community through a trial,” Hernandez said. “That is what will be happening. It would be targeted lawsuits where a landowner has a substantial and unreasonable interference with their property rights.”

Hernandez said he will work with FayCoSaysNo to evaluate potential cases.

“We would evaluate their case to see if they had a cognizable claim,” Hernandez said. “Should they, then that litigation would be funded through TJ and her group through this legal defense fund. Those battles would proceed in Fayette County in District Court.”

The Record asked Hernandez whether someone bringing a nuisance suit would have to be an immediate neighbor or if anyone could bring such a suit.

“At this point, the little that is known leads me to say it would have to be the immediate landowners,” Hernandez said. “Because those would be the ones with the strongest legal claim, the strongest factual claim.” Hernandez said the lawsuits would seek injunctions to prevent green energy developments from moving foward. He said existing projects would be harder to fight.

“One of the things you have to prove to get injunctive relief is imminent harm,” he said. “Imminent harm gets kind of stale. If you’ve been living with it, what kind of harm is imminent and irreparable?”

Any monetary damages would go to the plaintiffs who filed the suit, Hernandez said.

The Record asked whether legal action funded by Fay-CoSaysNo would be limited to commercial scale green energy projects, or whether someone could bring a suit against a homeowner who installs solar panels on their roof.

“It would have to go through the same filtering process,” he said. “If it was a substantial and unreasonable interference, and the person had a credible claim, then sure.

“Not many people have been in a lawsuit,” he added. “The truth is that it’s expensive to fight. That’s why I think what TJ and them are doing is a brilliant idea. Just to file a lawsuit, serving it, and the actual filing cost is around $500 in district court – you’re looking at a big ticket just to get in the door.”

Hernandez said he believes nuisance lawsuits could be used to fight other things neighbors may find offensive, such as mobile homes or shooting ranges.

“A landowner who, lets say, had a trailer park next to their land, or a shooting range next to their land – those types of things – there could be a cognizable claim if they had a substantial and unreasonable interference,” Hernandez said. “But with the defense fund, I think the only cases they would be willing to fund are cases related to green energy.”

The Record also asked McCleney whether her nonprofit would fund lawsuits related to non-green energy projects, such as mobile homes or shooting guns in the unincorporated areas of the County.

“Our goal as a non-profit is to focus on the protection of Fayette County against wind, solar and lithium battery storage,” McCleney said.

FayCoSaysNo will hold a meeting and fundraiser for the defense fund later this month.