Environmental Engineering Reference
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still giving downwind owners a sure-fire means of acquiring protection
against wake interference whenever the wind resources on their land are
superior to those on upwind parcels.
The first part of this approach would be a simple non-nuisance rule,
providing that landowners are never liable for downwind wake effects
caused by turbines installed on their properties. Except in cases where an
upwind defendant was clearly creating wake effects out of spite, landowners
would be free to install turbines on their parcels without having to worry
about being sued for the impacts of their turbines' wakes on properties
downwind.
To provide a means for downwind landowners to obtain wake protection
in cases where their lands have comparatively stronger wind resources,
the second part of this policy approach would create the equivalent of a
purchase option for an easement in favor of downwind parties. This policy
would require landowners to send written notice to downwind neighbors
before installing any turbines situated within five rotor diameters of a
property line along the predominant wind axis or three rotor diameters
along the secondary wind axis. These neighbors would then have an
opportunity to purchase from the upwind landowner the equivalent of an
easement or covenant preventing the siting of turbines within those setback
distances. Government officials would seek to set the purchase price for
this wake interference protection at an amount equal to the expected loss
that the upwind party would incur from the resulting restriction. Faced
with such a price, a rational downwind neighbor would elect to pay the
amount and secure wake interference protection only if its expected loss
from wake interference exceeded the upwind party's expected losses under
the restriction.
A numeric example
Given the relative complexity of this rule, it is admittedly difficult to grasp
it without a concrete example. To help better illustrate this option-based
policy and how it might function in practice, let us return once more to the
hypothetical fact pattern and diagrams involving Upwind Developer and
Downwind Developer used earlier in the chapter. Assume now, however,
that the county government where the parcels are located has adopted
an ordinance establishing wake-based turbine setbacks in areas zoned for
commercial wind energy development. These five-rotor-diameter by three-
rotor-diameter setbacks are sufficient to prevent any substantial wake
effects on adjacent properties downwind. However, these particular wake
setbacks are different from those imposed in Minnesota and some other
places in that they are waivable upon the satisfaction of certain conditions
prescribed in the ordinance.
Suppose that Upwind Developer has filed a permit to install a new wind
turbine at Site U 1 , a site well within this waivable wake setback area, as
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