Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 54

thus are not private property. 23 Although no other major government entity
in China has publicly taken this stance, the mere existence of such a contro-
versy can potentially damper wind energy investment. Basic wind rights
laws like those in Wyoming fully eliminate such questions.
New laws passed in many U.S. states also make clear that wind rights
cannot be “severed” and transferred separately from surface rights. 24
Landowners in the United States have legitimately severed mineral rights
from surface rights for decades, so when the concept of wind rights emerged
some citizens began attempting to sever these rights as well. In fact, at least
one court in the United States has held that wind rights severance is permis-
sible in some contexts. 25
Severing wind rights could seemingly be beneficial in some situations. For
example, it would allow a landowner who has leased rural ranchland for
wind energy development to convey the land to one child and the wind rights
(and accompanying rental income stream) to a different child. However,
because of complications that could result from allowing such severance,
all U.S. states that have enacted statutes relating to wind rights severance
have taken the approach of prohibiting landowners from severing their wind
rights from the surface estate. On the whole, these laws are beneficial in that
they provide at least some additional certainty on the issue of wind rights
severance, potentially reducing legal risks for wind energy developers. 26
Unfortunately, none of the new statutes just described resolves the
conflict described earlier in this chapter when a wind turbine's wake crosses
a property line and adversely impacts the turbine of a downwind neighbor.
This question largely remains unanswered and continues to generate costly
uncertainty for wind energy developers in most jurisdictions around the
world. What sorts of rules are best equipped to address these perplexing
and increasingly common disputes?
Analogies to other natural resource laws
Laws governing other natural resources are a logical place to begin
when considering possible rules to govern wind turbine wake interference
disputes. It is thus hardly surprising that multiple commentators have
explored possible analogies to these other sets of legal rules when analyzing
wake interference issues. Sadly, none of these related bodies of law seems
to provide a rule regime adequately tailored to resolve conflicts over
wind rights. The following excerpt from one of the author's articles on
this subject compares and contrasts wind with water, minerals, and other
natural resources and discusses why laws governing these resources are not
well suited for wind.
Existing natural resource law is a logical starting point for crafting rules
to govern wind rights. Longstanding laws already allocate interests
in water, wild animals, minerals, airspace, and subsurface oil and gas