Wind Turbine Wakes, Wake Effect Impacts, and Wind Leases: Using Solar Access Laws as the Model for Capitalizing on Wind Rights During the Evolution of Wind Policy Standards

Abstract

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners, their neighbors, and for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect) that occurs between commercial upwind turbines and downwind turbines. Upwind turbines create wind wakes that impact the natural wind flow to adjacent downwind turbines, causing the downwind turbines to experience diminished energy prosecution and, in some cases, increased mechanical loads. The rights and income streams that are tied to this diminution can influence a developer’s decisions to erect turbines in certain locations or to construct a wind project altogether. At a minimum, for wind projects that are constructed, developers and landowners on whose property commercial wind turbines are placed should consider the impact of wake effect on turbine placement, operation, and performance. The United States currently lacks a comprehensive national standard, federal guidelines, legislation, Supreme Court precedent, or a regulatory structure that establishes a unified approach to wind rights, including a uniform minimum setback distance (the length of the buffer zone between two utility-scale wind turbines, or between a utility-scale wind turbine and the adjacent landowner’s property line). Through the example of wake effect, this article argues that a non-unified approach to wind rights as a matter of policy is not optimal for several reasons. First, inconsistent laws, rules, and regulations across state lines and between local jurisdictions – such as the absence or presence of setback distances between wind turbines – factor into the magnitude of adverse economic impacts a downwind turbine owner may sustain, particularly in terms of potential financial loss due to turbine spacing and location on a particular parcel. Second, inconsistency between jurisdictions may encourage developers to forum shop for the jurisdiction that has the most favorable laws, rules, and regulations, depending on whether their respective turbines will be located upwind or downwind of another developer’s turbines in a particular location. A more preferable approach would be to adopt a more unified policy that encourages wind turbine construction on a site on which feasibility, environmental, and other suitability studies have been conducted, regardless of whether or not that site is upwind or downwind from an adjacent developer’s wind farm site. Currently, the legal policies and regulations governing wind rights in a particular area influence how developers address wind flow over a particular parcel, wake effect, cumulative impact issues, turbine siting, wind lease negotiation, and constraints to wind farm development. Accordingly, determining the precedent and the most appropriate theoretical basis behind this framework is of paramount importance. Lessons learned from other countries’ case law are instructive insofar as selecting the appropriate precedent and rationale on which a U.S. domestic legal framework for wind rights may be based. Because sunlight and wind access share common elements, this article advocates employing regulatory paradigms used to govern solar rights in Japan and Great Britain, in addition to elements of solar access laws from certain states domestically. Historical precedent illustrates that contemporary social factors and economic considerations play critical roles in shaping policy and impacting courts’ rationales for determining ownership rights to access natural resources such as sunlight. Today, these same policy-shaping factors may impact wind rights allocation in this evolving area of law. This article proposes a new approach for determining wind rights by analogizing wind to sunlight, and by encouraging substantially impacted stakeholders and directly impacted communities to participate in the wind rights allocation process. This approach offers a springboard for formulating new legal policies and advancing the development of state, regional, and federal wind rights standards.