The rise of the ephemeral energy source poses new legal questions
November 15, 2010 5:00 AM
By Elwin Green Pittsburgh Post-Gazette
Can anyone own the wind?
At first glance, the concept appears ludicrous. Wind is merely moving air. It blows where it will, when it will. You cannot store it, transport it or subdivide it.
But then, the concept of individuals owning land was once foreign to this part of the world.
As wind power continues to grow its (still small) share of the energy landscape, aspects of land law may form the basis of a new body of law governing rights to wind.
In 2002, according to the American Wind Energy Association, the total wind power capacity operating in the U.S. was less than 5,000 megawatts. Now it tops more than 35,000 megawatts, with 748 megawatts in Pennsylvania.
"For the first time in history, the right to capture wind in some areas of the country has become marketable and highly lucrative," Troy A. Rule, an associate professor at the University of Missouri School of Law, wrote in Environmental Forum magazine, published by the Environmental Law Institute.
Where there is money, there is the likelihood of disputes.
With wind, one potential cause of a dispute is the so-called wake effect. A wind turbine creates a wake of turbulent air, like the wake behind a boat. If another turbine is within a certain distance behind it, the wake effect could reduce the wind available to the second turbine so much that it becomes unprofitable to operate.
The question is what legal approaches might be used to help produce optimum siting of wind farms, so that one developer's turbines are not made less effective by the workings of another's.
After considering classifying wake interference as an actionable nuisance, or an ad coelum-based law, Mr. Rule suggested an option approach. In that case, a landowner would be required to notify neighbors before installing a turbine so that a neighbor would have the option of paying him not to install it, in case that neighbor wanted to install one.
"A rational neighbor would elect to pay [the option amount] only if the downwind turbine site had greater wind energy potential than the upwind site," he wrote.
Eric E. Freedman, a partner in the Seattle office of K&L Gates, said that under present law, the legal tools of choice for wind developers are not options, but leases and easements.
"You lease enough land around your turbine to give you some distance that way," he said, "and you enter into agreements that would allow you to prevent somebody from building a wind farm, even on land that you aren't using."
This would not involve actual rights to the wind itself, only rights related to the land that are already well-established in current law.
One reason such protections are important is that the same wind resource attracting one wind farm developer to an area will attract others to locate nearby.
"Wind farms are birds of a feather, and they flock together," Mr. Freedman said.
There is another reason, one that goes back to money.
"Because wind farms tend to be located in the country, you need to get electrical power onto the grid," he said. That requires transmission lines running from each individual turbine and substations to channel the power into the transmission system.
And those are expensive. Very expensive.
It makes sense for wind farms to locate close enough to one another to share some of those costs.
"It is in everybody's interest because it helps to save costs for transmission, but they can't be so close together that they're interfering with their generating capacity."