Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 56

Wind is also analogous to water flowing in rivers and streams across
the surface of land. Unlike oil, water often crosses property rather
than residing in stationary pools beneath it. Landowner conflicts over
water rights thus exhibit a directional (upstream/downstream) element
comparable to the upwind/downwind nature of wind.
Laws in many [U.S.] states allocate interests in surface water among
landowners based upon the doctrine of riparian ownership, which
provides that landowners whose properties abut a water source possess
rights to make “reasonable use” of water from the source in proportion
to their respective parcels' frontage on the lake, river, or stream. Of
course, since all of a parcel's surface area “fronts” the airspace through
which breezes blow, analogies to the riparian ownership doctrine are
unlikely to yield a workable rule for wind rights.
In lieu of riparian ownership laws, some states with more arid climates
have embraced the prior appropriation doctrine. Under the prior appro-
priation doctrine, the first party to make beneficial use of water from
a natural water source thereby acquires rights to continue using that
amount for that purpose. One could certainly imagine a “first-in-time”
rule for wind rights resembling the prior appropriation doctrine under
which the first landowner to install a wind turbine (and thereby make
beneficial use of the wind) could claim rights in the affected wind flow
against the competing interests of neighbors. However, a first-in-time
approach would arguably contradict the ad coelum doctrine by effec-
tively reallocating limited rights in airspace to initial turbine installers.
Such an approach would also lead to productive inefficiency whenever
the first of two competing turbine sites to be developed had less valuable
wind resources than the undeveloped site.
(Troy Rule, Sharing the Wind , The Environmental Forum, Vol. 27,
No. 5, pp. 30-33 (September/October 2010))
A first-in-time rule?
Interestingly, at least one local government has effectively adopted a
“first-in-time” rule for wind rights that is comparable to the prior appro-
priation rules for water rights described in the excerpt above. A provision
adopted in Otsego County, New York, requires that “a 'wind access buffer'
equal to a minimum of five (5) rotor diameters … be observed from any
existing off-site wind turbine generator tower” for all newly-proposed wind
turbines. 27 This rule effectively allocates competing wind rights to whoever
is the first to make beneficial use of wind resources by erecting a wind
turbine on their land.
Consider, for instance, the effect of such a “first-in-time” rule in the
hypothetical fact pattern set forth in connection with Figure 3.1 above. In
that scenario, if Downwind Developer had already installed a turbine at Site
D when Upwind Developer filed its permit application for a turbine at Site