Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 55

among landowners. Legal scholars have drawn comparisons between
wind and these other resources for decades.
In a sense, wind is like a wild animal: to the extent that the energy in
wind is “captured” by a landowner's turbine, that energy never crosses
the property line for potential capture by landowners immediately
downwind. For centuries, common law rights in many wild animals
have been allocated based upon the “rule of capture,” a doctrine
famously highlighted in Pierson v. Post that gives title in wild animals
to the first party who kills or captures them. Under old English law,
landowners generally had constructive possession of wild animals
that were located on their property. Landowners in the U.S. have no
possessory rights in wild animals upon their land but can typically
preclude others from hunting there, giving them an exclusive right
to capture animals and claim title. A rule of capture for wind would
arguably give landowners the exclusive right to capture wind crossing
their property, without liability to downwind neighbors for consequent
reductions in wind flow.
Wind also bears similarities to subsurface oil and gas. Both oil
extraction and wind energy development require significant capital
investment, and both can potentially reduce the amount of valuable
resources available to adjacent property owners. Oil and gas law is
rooted in the rule of capture and in another foundational principle of
natural resources law known as the ad coelum doctrine. The ad coelum
doctrine provides that “to whomsoever the soil belongs, he owns also
to the sky and to the depths,” meaning that a fee owner of a parcel
of land owns all of the minerals, oil, and gas immediately beneath
the parcel's surface and all the usable airspace immediately above it.
Nearly a century ago, state courts in Texas and other states essentially
combined the rule of capture and ad coelum doctrine to develop a rule
of capture to oil and gas that entitled landowners to as much subsurface
oil as they could extract from directly below their properties.
Not surprisingly, applying a pure rule of capture approach to oil
and gas rights ultimately proved to be problematic. Subsurface oil is
typically in liquid form and exists in large pools that span beneath
numerous parcels, so extraction occurring on one parcel can often
reduce the volume of oil remaining under other parcels. The rule of
capture thus led to wasteful drilling practices because landowners
operating under the rule had an incentive to extract oil as quickly as
possible to avoid forfeiting it to neighbors. Over time, state legislatures
have addressed these problems by enacting more sophisticated uniti-
zation statutes and other laws structured to encourage more efficient
oil extraction. While unitization statutes are effective at allocating oil
and gas rights among large groups of landowners, such approaches
would be far less apt at handling the typical two-party wind rights
dispute.