The role of innovation - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 200

Airborne wind energy innovations would not only provide access to
a vast new renewable energy resource; they could also enable future
developers to avoid some of the conflicts commonly associated with
conventional wind farms. For example, many airborne wind turbines
are designed to hover 1,000 feet or more above the ground 26 —heights at
which neighbor disturbances such as turbine noise or flicker effects are less
likely to occur. Because they would not be as permanently anchored to the
ground as conventional turbines, airborne wind turbines could potentially
be more easily relocated and could even be temporarily grounded during
storms or particular periods when unblemished viewsheds were of greater
priority. And because wind speeds tend to be stronger and more consistent
at high altitudes, airborne wind technologies could allow for profitable
wind energy development far closer to many metropolitan areas where
low-altitude wind conditions are not favorable enough for land-based wind
farms. 27
Of course, airborne wind energy development would introduce its own
distinct set of challenges as well. Airborne wind turbines would operate at
altitudes rarely traversed by humans other than via an occasional helicopter
or airplane. Because they would increase the productive value of high-
altitude airspace, airborne wind energy technologies could generate new
conflicts and legal questions surrounding the ownership and use of this
space. In most areas within the United States, for instance, airspace more
than 500 feet above the ground is classified as “navigable airspace” 28 —a
commons or “public highway” for aviation. 29 Developers intending to
operate airborne turbines in this high-altitude space would likely need
exclusive rights to occupy it for that purpose and would want legal
protection against disruptive air traffic in the area.
If airborne wind energy development eventually takes off and becomes a
viable industry, courts and policymakers will be tasked with resolving the
new legal issues it would raise. Would U.S. airborne wind farm developers
need to lease navigable airspace from the government through a leasing
system comparable to the one that presently exists for offshore wind farms
and offshore oil drilling? Like deep offshore areas, navigable airspace
is a sort of public trust resource that is largely controlled by the U.S.
government, so some sort of federal leasing program for this space would
seemingly be warranted.
In addition, airborne wind energy developers would need some limited
property rights in surface areas directly below airspace leased for such
projects so that they could tether the turbines to the ground and run trans-
mission lines capable of delivering generated electricity to the grid. Except
in cases where the airspace lease area is situated directly above federal
public lands or above some other government property, these surface rights
and the non-navigable airspace directly above them would be privately held
and not government-controlled. An airborne wind farm developer would
thus theoretically need to enter into two separate leases—one with the