Wind resources are generally thought to be “free”. What right, for instance, do you have to prevent a cool breeze from refreshing me in the summer? The breeze belongs to everyone and no one, right? Well, when it comes to the installation of revenue-generating turbines upwind from someone else’s property, the rights of the downwind neighbor may also be implicated. One law professor examines how to hash out the relationship between these two parties.
A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights
by Troy A. Rule, University of Missouri School of Law
In San Diego Law Review, Vol. 46, p. 207, 2009
University of Missouri School of Law Legal Studies Research Paper No. 2009-23
Abstract: The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.