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

Kimberly E. Diamond, Lowenstein Sandler PC
Ellen J. Crivella, GL Garrad Hassan

Abstract

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best approach for resolving wake effect-based disputes between upwind and downwind developers.

Absent a national standard or federal legislation setting a unified approach to wind rights, this paper advocates a novel approach - employing regulatory paradigms used to govern solar access and solar rights - as a viable foundation for laws and policies governing wind rights. Historical precedent from Japan, England, New Mexico, and California with respect to access to sunlight illustrates that social factors and economic considerations of the day play critical roles in shaping policy and impacting courts’ rationale for determining ownership rights to natural resources such as sunlight. Today, the same policy-shaping factors may impact the allocation of wind rights in this evolving area of law, particularly as the U.S. Supreme Court has not yet considered the issue of wind rights. While Wind Lease Agreements between landowners and developers may grant certain rights to each, such as non-obstruction easements to the developers and royalty payments to landowners, these bilateral contracts do not involve other substantially impacted stakeholders or entail community input, making these contracts and the wind rights negotiation process inherently non-transparent. As a compounding consideration, current state regulations, such as those in Minnesota and North Dakota, create a piecemeal framework for determining incentives, liability, and transparency in wind lease agreements.

As this paper illustrates, the potential for a non-unified approach to wind rights is significant. Strategies used to govern wind rights in a particular area will influence developers’ actions in terms of addressing wake effect, cumulative impact issues, turbine siting, and rights to future lease payments for wind flow over a parcel. How these issues are decided is crucial, as monetary consequences that function as constraints to development are tied to the legal framework selected. This paper argues that new legal policies addressing wind rights should be formulated within a utilitarian framework, ensuring that the approach selected maximizes the greatest amount of renewable energy generated from wind for the greatest number of people, balances fairly the rights of the most directly impacted parties such as developers and landowners, and sets bright-line guidelines for a reasonable diminution level in the amount of wake-effect impacted wind flowing to a downwind developer, while both establishing clear, safe harbor provisions for adjacent upwind developers whose turbines create wake effect and by taking into account input from the impacted community and other most significantly impacted stakeholders.