Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 63

unnecessarily invite litigation over these conflicts. Downwind landowners
would have standing to sue and employ scarce judicial resources whenever
an upwind neighbor installed a wind turbine that reduced wind produc-
tivity on their land.
A clear non-nuisance rule?
A third potential way of governing wind turbine wake interference conflicts
would be to adopt the exact opposite of a nuisance-based approach: a
simple rule providing that wind turbine wake interference can never give
rise to any legal claim. Under this straightforward rule, landowners would
be free to capture any wind flowing above their land without liability to
neighbors for downwind wake effects.
Like the nuisance rule, this “non-nuisance rule” would greatly clarify
how wind rights are legally allocated among neighbors, reducing legal
uncertainty that might otherwise deter efficient wind turbine siting. Such
a rule would also arguably be more in line with the ad coelum doctrine
because it would allocate wind rights strictly based upon surface ownership,
solely protecting rights to whatever wind resources happened to flow in the
airspace directly above any given parcel. Because lawsuits based on wind
turbine wake interference would be disallowed under this sort of rule, the
rule would even generate far less litigation than would a nuisance-based
approach.
Particularly in jurisdictions where the terrain is very flat and there is
minimal local variability in wind resources, this non-nuisance rule may be
the best policy approach for dealing with turbine wake conflicts for the
reasons just mentioned. There is reason to believe that this rule would have
some capacity to promote optimal turbine layouts, even when two neigh-
boring, competing developers are involved.
The potential merits of the non-nuisance rule are easier to understand
through a revisiting of the fact pattern set forth earlier in the chapter
involving Figures 3.2 and 3.3 . Suppose, in that scenario, that Upwind
Developer was the first to submit its layout for Parcel U—an eight-turbine
layout like those shown on Parcel U in Figures 3.2 and 3.3 . If the relevant
jurisdiction had adopted a non-nuisance rule for turbine wakes, Downwind
Developer would have known that it had no legal protection against any
wake effects affecting Parcel D when this Parcel U layout plan came to light.
Accordingly, Downwind Developer would have revised its Parcel D layout
from the eight-turbine version in Figure 3.3 to the seven-turbine design
shown in Figure 3.2 —the optimal outcome.
The non-nuisance rule would be slightly less effective whenever the
downwind party involved is the first to develop its project. Returning to
the same fact pattern, suppose instead that Downwind Developer had
begun siting a wind energy project on Parcel D before Upwind Developer
began siting work on Parcel U. In a jurisdiction with a non-nuisance rule,