Economic and legal principles in renewable energy development policy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 13

Renewable energy development as a use of land
In a sense, renewable energy development is ultimately just another form of
real estate development. Like most commercial real estate projects, utility-
scale wind and solar energy projects essentially involve the construction of
large structures upon the surface of land for commercial purposes. It should
come as no surprise, then, that many of the same basic property law issues
considered during the early stages of commercial real estate developments
are relevant in the renewable energy context as well. For instance, is the
seller or lessor of the subject property its sole owner in fee simple? Are
there any financial liens or encumbrances on title? Will the developer have
adequate road and utilities access, or are additional appurtenant easements
needed? Could any of the covenants, servient easements, or other encum-
brances recorded against title potentially interfere with the development
plan? These sorts of generic real estate development questions, while not the
focus of this topic, are just as capable of derailing a wind or solar energy
project as they are at thwarting progress on any other type of real estate
development.
On the other hand, the unique characteristics and enormous size of
utility-scale renewable energy projects expose them to a whole host of
additional land use issues that rarely or never arise in the development
of an ordinary shopping center or condominium. A single wind farm can
involve dozens of square miles of contiguous land. Modern commercial
wind turbines frequently stand more than 400 feet high and must be spaced
great distances apart to minimize turbine wake interference. 10 Turbines also
must be spaced sufficiently far from property boundary lines and roads so
that they would not fall onto neighboring parcels if a catastrophic event
toppled them over. Although concentrating solar plants (CSPs) tend not to
be as towering or sprawling as wind farms, they can also occupy substantial
amounts of surface land and raise similar sorts of issues.
Renewable energy development as a use of airspace
Conflicts over competing uses of surface land are relatively straightforward,
but clashes over the other natural resource at the center of many renewable
energy development conflicts—airspace—can be far more perplexing. As
the following article excerpt describes, the sustainability movement is
making airspace more valuable than ever before and further complicating
efforts to govern this important resource.
Airspace is among the most ubiquitous of all natural resources, present
in every corner of the globe. Nonetheless, airspace is inherently scarce.
Each cubic inch of it exclusively occupies a unique spatial position in the
universe. The old adage “location, location, location” thus applies as
much to the valuation of airspace as it does to the valuation of surface