Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners, their neighbors, and for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect) that occurs between commercial upwind turbines and downwind turbines. Upwind turbines create wind wakes that impact the natural wind flow to adjacent downwind turbines, causing the downwind turbines to experience diminished energy production and, in some cases, increased mechanical loads. The rights and income streams that are tied to this diminution can influence a developer's decision to erect turbines in certain locations or to construct a wind project altogether. At a minimum, for wind projects that are constructed, developers and landowners on whose property commercial wind turbines are placed should consider the impact of wake effect on turbine placement, operation, and performance.
The United States currently lacks a comprehensive national standard, federal guidelines, legislation, Supreme Court precedent, or a regulatory structure that establishes a unified approach to wind rights, including a uniform minimum setback distance (the length of the buffer zone between two utility-scale wind turbines, or between a utility-scale wind turbine and the adjacent landowner's property line). Through the example of wake effect, this article argues that a nonunified approach to wind rights as a matter of policy is not optimal for several reasons. First, as discussed herein, inconsistent laws, rules, and regulations across state lines and between local jurisdictions--such as the absence or presence of setback distances between wind turbines--factor into the magnitude of adverse economic impacts a downwind turbine owner may sustain, particularly in terms of potential financial loss due to turbine spacing and location on a particular parcel. Second, inconsistency between jurisdictions may encourage developers to forum shop for the jurisdiction that has the most favorable laws, rules, and regulations, depending on whether their respective turbines will be located upwind or downwind of another developer's turbines in a particular location.
A more preferable approach would be to adopt a more unified policy that encourages wind turbine construction on a site on which feasibility, environmental, and other suitability studies have been conducted, regardless of whether or not that site is upwind or downwind from an adjacent developer's wind farm site. Currently, the legal policies and regulations governing wind rights in a particular area influence how developers address wind flow over a particular parcel, wake effect, cumulative impact issues, turbine siting, wind lease negotiation, and constraints to wind farm development. Accordingly, states with suboptimal regulations with respect to wind farm development and, specifically, a minimum turbine setback distance, may lose the wind project and the accompanying revenue to other states having shorter minimum setback distance requirements or no setback restrictions at all. For instance, one state may lose to another state the jobs that are created by and accompany wind farm construction which would otherwise have been a source of economic stimulation for the area at and around the wind farm site. The issue of statutes and ordinances establishing setback limits then becomes a political and economic issue rather than a renewable energy or environmental issue. Not surprisingly, significant economic and political consequences flow from decisions governing turbine setback limits, and from developers' decisions as to where and whether a wind farm should be sited in a particular city, county, or state. Developing an appropriate legal and regulatory framework that simultaneously sets desirable policy standards for developers, states, landowners, and the general public, and that maximizes both wind farm productivity and profitability is critical. …