Wind energy vs. wind energy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 71

whenever voluntary bargaining failed for any reason, downwind owners
would have an alternative means of acquiring protection against wake
interference if they were willing to purchase it for an amount equating to
its fair value. This policy would not only reduce legal uncertainty regarding
the allocation of wind rights among landowners; it would also promote the
overarching policy goal of promoting productive efficiency in wind turbine
siting. 38
As of yet, no local government has begun using waivable wake-based
setbacks to address the issue of wind turbine wake interference conflicts
in its jurisdiction. As the value of wind resources continues to grow and
such conflicts become increasingly common, hopefully governments in
places where wind resources are highly location-specific will not be afraid
to consider such a policy approach. Although it is a bit more complex than
a pure non-nuisance rule, this sort of two-part rule has the potential to
better balance the competing goals of fairness and efficiency in the wake
interference context.
Notes
1 Portions of this chapter are adapted from the author's other published writings
on this topic, including Troy Rule, Sharing the Wind , The Environmental
Forum, Vol. 27, No. 5, pp. 30-33 (September/October 2010), and Troy A. Rule,
A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights ,
46 San Diego Law Rev. 207 (2009).
2 It is worth noting that additional setback distances are often required for
turbines near homes or public rights-of-way and justifiable to the extent they are
needed to protect others from turbine noise or physical dangers.
3 See Kimberly Diamond & Ellen J. Crivella, Wind Turbine Wakes, Wake
Effect Impacts, and Wind Leases: Using Solar Access Laws as the Model for
Capitalizing on Wind Rights During the Evolution of Wind Policy Standards , 22
Duke Envtl. L. & Pol'y F. 195, 202 (2011).
4 According to one source, an increase in the long-term mean wind speed at a
turbine site from six meters per second to 10 meters per second can increase a
turbine's energy productivity by 134 percent. See The Importance of the Wind
Resource , Wind Energy: The Facts, available at www.wind-energy-the-facts.org/
the-importance-of-the-wind-resource.html (last visited February 24, 2014).
5 See, e.g. , S. Lee, et al., Atmospheric and Wake Turbulence Impacts
on Wind Turbine Fatigue Loading, p. 12 (National Renewable Energy
Laboratory, December 2011), available at www.nrel.gov/docs/fy12osti/53567.
pdf (last visited June 19, 2013) (noting that “downstream” turbines in a study
yielded higher “damage equivalent loads,” suggesting that the “turbulent
wakes from upstream turbines can have a significant impact” in increasing
turbine fatigue for up to seven rotor diameters behind the upwind turbine).
See also Kenneth Thomsen & Poul Sorensen, Fatigue Loads for Wind Turbines
Operating in Wakes , 80 J. Wind Engineering & Industrial Aerodynamics
121 (1998) (noting that turbine “fatigue” or wearing of turbine parts increased
by between 5 percent and 15 percent from wakes of upwind turbines for one
offshore wind farm in Denmark).
6 Black's Law Dictionary 453 (4th ed. 1968). The full maxim is cujus est solum,