Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 53

such wake effects, given her strong displeasure for wind farms. In Posner's
words:
[T]he only possible … harm that the wind farm could do to her would
be to reduce the amount of wind energy otherwise available to her, and
the only value of that energy would be to power a wind farm on her
property—and she is opposed to wind farming. 20
Posner aptly identified the inherent flaw in wind rights-based arguments
by NIMBY activists. Such landowners are highly unlikely to ever allow
productive use of wind on their land, so it would be difficult to justify
preventing wind energy development on upwind properties solely to protect
these landowners' wind resources. Still, the lack of clear legal rules to allocate
wind rights among neighbors can encourage this type of opposition strategy.
Wind rights and turbine wakes: progress to date
Real-life disputes over wind rights and turbine wakes like those just
described are almost certain to proliferate as pressure to increase the density
of wind energy development escalates in future decades. Enacting laws that
clearly and effectively address wind turbine wake interference conflicts can
help to prevent these disputes from unnecessarily impeding efficient wind
energy development. But what set of rules is best suited to allocate wind
rights among neighbors in these contexts? Although wind rights laws are
slowly beginning to evolve in some jurisdictions, their development is still
very much in the formative stage.
Wind rights and wind severance statutes
Within the U.S., a small handful of states has enacted statutes in recent years
aimed at clarifying wind rights ownership to some degree. For instance, a
law enacted in the state of Wyoming in 2011 specifically provides that
“[w]ind energy rights shall be regarded as an interest in real property and
appurtenant to the surface estate.” 21 These statutes make clear that rights
to capture or make commercial use of wind flowing in the low-altitude
airspace above a citizen's land are private property and are not held in
public trust or owned by the government or anyone else.
Even simple, clarifying statutes like the one enacted in Wyoming can help
to reduce the legal uncertainty associated with wind energy leasing and are
thus laudable on that account. In some nations, the concept that private
landowners generally hold interests in wind resources above the surface of
their land is less clear. One such nation is China, which has been among the
world leaders in wind energy development for years. 22 At least one regional
government entity in the country has interpreted Article 9 of China's consti-
tution to provide that wind and solar energy are state-owned resources and