Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 62

help prevent local resistance based on aesthetic or other general NIMBY
concerns, this policy approach would be aimed at compensating landowners
for impacts on their wind resources. 32
In 2011, legislators in North Dakota in the United States introduced a
bill that would have required compulsory unitization for commercial-scale
wind energy development in that state. 33 All landowners whose “wind
resources are affected by the siting of a commercial wind energy conversion
facility” would have been entitled to compensation under the statute. 34
Although the bill was never enacted, the idea of using unitization-like
structures to avoid wind turbine wake interference conflicts with those on
the fringe of a wind energy project is one that could resurface in the future.
Unfortunately, compulsory unitization can add significant costs to wind
energy development, which is why some industry stakeholders in North
Dakota resisted it. 35
Wake interference as a nuisance?
Another possible way of addressing turbine wake interference conflicts
would be to categorize wakes as an actionable nuisance whenever they
materially adversely affect a downwind neighbor's wind farm. A turbine
wake that reduces energy generation at a downwind wind farm is arguably
a substantial non-trespassory interference with a productive use of neigh-
boring land and thus fits the basic requirements for a nuisance claim. In
that sense, a court could conceivably determine that turbine wake effects
are not altogether different from foul odors, loud noises, or other common
law nuisances. In the United States, courts seeking to apply nuisance law
to such conflicts are likely to try to “balance … the costs and benefits of
the land use claimed to have caused a nuisance”—a wind turbine in this
case. Under this sort of analysis, a turbine's wake might theoretically give
rise to an actionable nuisance in those instances when the magnitude of the
wake's harm to the downwind landowner exceeded any benefits of siting
the offending turbine in its particular location on the upwind property. 36
Laws recognizing turbine wake interference as a nuisance would arguably
be better than the current lack of any legal rule in that such laws would help
to reduce legal uncertainty associated with these conflicts. Once legislators
enacted such a rule, landowners would know that they could potentially be
liable for wake effects and could design their wind energy project layouts
accordingly.
On the other hand, a rule recognizing nuisance claims for turbine wakes
would implicate its own problems and would arguably diverge from existing
law. For starters, commercial wind turbines stand hundreds of feet in the air,
and wind farms are still a fairly unusual type of land development in most
areas. One could thus argue that commercial wind energy development is
a hypersensitive land use—not an ordinary land use deserving of nuisance
law protection. Also, laws recognizing wake effects as a nuisance would