Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 50

parcel includes rights to capture the energy in any wind flowing directly
above it for productive use.
In contrast, parties in Downwind Developer's position are likely to argue
that the wake effects extending onto their property constitute an actionable
nuisance . Under this theory, Downwind Developer might allege that the
Site U turbine's wake unreasonably interferes with its reasonable exercise
of its own property rights for wind energy generation. One can recognize
the sensibleness of this sort of argument as well, particularly in situations
when a neighbor seeks to install a turbine whose wake would substantially
interfere with an existing turbine on a downwind parcel.
Turbine wake conflicts like these are often further complicated by the
fact that the parties involved in them are frequently at odds with each other
even before their dispute arises. Relationships between developers who are
competing to develop wind farms in the same community are frequently less
than amiable. Even in towns where there are sufficient resources and public
support to enable both of two neighboring wind energy projects to succeed,
the developers of each project are likely to view each other as arch rivals.
Add to this the unfortunate reality that laws governing wind turbine
wake interference are relatively unsettled, and it is easy to recognize the
difficult challenge developers can face when such issues arise. Turbine wake
interference conflicts are relatively new, so few jurisdictions have clear laws
in place to govern them.This dearth of legal guidance can further undermine
efforts to peaceably settle turbine wake disputes because there is no statute
or solid legal precedent to provide a starting point for negotiations.
Failures to expeditiously resolve turbine wake conflicts can result in
costly project delays and litigation to both parties. Rather than risk having
to try to protect ambiguous rights in court when faced with such conflicts,
some developers may move on to less productive turbine sites, ultimately
under-utilizing precious wind resources.
Disputes over wind rights: real world examples
Although many conflicts over wind rights and turbine wake interference go
unpublicized, a handful of such conflicts has received media attention in
recent years. The following are descriptions of three types of such disputes
that have arisen in the United States in the past decade or so and how they
were ultimately addressed.
Downwind developers' late calls for wake-based setbacks
On at least two occasions, wind rights disputes have arisen in the state
of North Dakota when downwind developers have asked local officials
to impose wake-based setbacks on projects situated immediately upwind.
In 2005, a downwind developer, enXco, allegedly made such a request
in connection with a proposed wind energy project by Florida Power