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March 25, 2010 Volume 31, No. 25

Wind power raises new legal issues

capture the wind

Technology progresses faster than law

Fears of global warming and climate change due to carbon emissions have caused a dramatic increase in the research and implementation of renewable energy sources. Wind energy is one source of renewable energy that has been used more often in recent years. Due to the increased value placed on wind, new legal issues have emerged regarding wind rights.

An MU legal expert says that, as with many new developments, technology often progresses faster than the law. Troy Rule, associate professor of law, and an expert in renewable energy law, has studied current legal precedents regarding both energy and property rights. Rule believes officials need to adopt legal changes in order to adapt to new renewable energy technology.

“Policymakers searching for fair and efficient ways to promote renewable energy development will likely be influenced by current natural resource and energy law,” Rule says. “However, existing laws will be unable to effectively address some issues relating to renewable energy. Like sub-surface oil and gas, wind and solar resources have unique characteristics that require specially tailored legal rules to effectively govern how these resources will be shared among neighbors.”

Legal issues regarding wind rights appear when evaluating who has the right to capture wind freely. Modern day wind turbines are known to create wind disturbances or “wakes” for hundreds of yards downwind. If an upwind property owner (owner A) wishes to install a wind turbine on his property, the wind reaching his downwind neighbor (owner B) might be affected. If owner B then wishes to install a turbine on her property, she must choose to locate it somewhere that won’t be affected by owner A’s turbine wake. This location might not yield as much wind energy, thus causing owner B to lose out on potential earnings.

“Without clear legal rules segregating one property owner’s right to capture wind from the competing rights of neighbors, conflicts among neighbors will inevitably arise resulting in litigation and underdevelopment of those areas that are the best-suited for wind energy,” Rule says.

To suggest a legal solution for the problem of competing wind rights Rule uses the Cathedral Model, which is a popular legal model for analyzing rules governing the allocation of a scarce resource between two competing parties. He proposes that in rural areas that have been zoned for commercial wind energy development, landowners should be free to place wind turbines anywhere on their property within ordinary safety restrictions without being liable to neighbors for downwind wake effects.

However, to encourage the most efficient use of wind resources in such areas, Rule says laws should require that downwind neighbors receive both notice of a landowner’s plans to install a wind turbine and a legal right to pay the upwind owner to keep him from installing the turbine (at the value of the turbine site to the upwind owner).

Rule believes a rational downwind neighbor would exercise this purchase option only if the value of their own wind turbine site exceeded the value of the upwind owner’s turbine site. “This type of rule draws upon the knowledge of the disputing landowners to settle their conflict in a way that promotes the optimal use of the wind resources at issue,” he says.

Rule joined MU’s law faculty in 2009. He previously was an attorney at K&L Gates LLP in Seattle, where his practice focused on commercial real estate transactions and wind energy development. His review of wind rights law was published in the San Diego Law Review.