Who Owns the Wind? Turns Out A Lot of People (Think) They Do
Red tape is perhaps the most underappreciated impediment to the timely expansion of wind-power capacity in the United States. Local laws and regulations are often unduly cumbersome or discriminatory against wind-power projects. Many otherwise compelling wind-power projects have been abandoned as a result of unforeseen conflicts with local land-use authorities. The significant losses experienced when projects fail have likely chilled investment in wind-power, especially after the financial crisis amplified concerns about investment risk and made it increasingly difficult to finance any capital-intensive project like wind farms.
These obstacles have complicated risk and costs of wind power projects, threatening the expansion of U.S. wind-power capacity. If that expansion does not proceed rapidly enough to meet anticipated demand growth, the U.S. economy will suffer and, in the long run, so will the planet’s climate system. As a result, environmental advocates and clean energy advocates have called for federal preemption of local land-use and zoning laws. (see note 1).
A similar strategy galvanized massive growth in the telecommunications sector when the Telecommunications Act of 1996 preempted several categories of local laws barring construction of cell-phone tower largely because of the perceived national benefit that wireless communications would bring. And yet there is reason to suspect that preemption may be less effective in promoting wind-power policy than it proved to be in promoting telecommunications policy a decade ago. For starters, federal courts have endorsed expansive interpretations of state sovereignty over the last decade, increasing the likelihood that any preemption effort may be ruled improper in federal courts. For instance, in April, the U.S. Fourth Circuit Court of Appeals ruled that the Department of Energy lacked the authority to impose transmission zones . . . on local and state governments that had not considered transmission siting requests in a timely manner. (see note 2)
In addition to federalism concerns, federal preemption, which is generally considered heavy handed, could have collateral and likely negative consequences on the public’s attitude towards wind power. The combination of these issues suggests the need for alternative strategies likely to prevent administrative obstacles from impeding the timely expansion of U.S. wind-power capacity. This paper proposes one such strategy.
By incorporating well-established rules and procedures from existing regulations into a model for wind rights, policy makers can potentially ameliorate many of the regulatory inefficiencies currently slowing growth in U.S. wind power capacity. That is the good news. There is also bad news. If mismanaged, the adoption of regulatory analogs for wind power will likely make it harder not easier to solve the nation’s looming energy and environmental challenges with wind power. The risks associated with using analogs for purposes of designing a wind rights regime can be reduced by using stricter criteria to limit the universe of analogs considered. In particular, policy makers should only use analogs that match both the form and substance of federal wind-power policy to fashion an efficient wind rights regime.
[1] See also Alan J. Knauf, “Wind Power Meets Zoning”; Twelfth Annual National Conference on Private Property Rights (PRFA, Albany, N.Y., October 18, 2008). The argument is also made for state-based preemption of “home rule” jurisdiction that allows local authorities to impose local zoning codes and standards as a way of bringing wind power under a single umbrella policy. Wisconsin, Nevada, Vermont, Michigan, Oregon, New Hampshire and California have preempt home rule specifically to prevent local discrimination against the use of small wind systems.
[2] Piedmont Environmental Council v. FERC, (4th Circuit) http://pacer.ca4.uscourts.gov/opinion.pdf/071651.P.pdf