05/23/2023 - Inflation Reduction Act - Onshore Energy - Student Work

Wind Wakes and the Right to Wind Power Generation

by Dolly Bai, JD 2024

The Biden administration’s goal to create a carbon pollution-free power sector by 2035 and a net zero emissions economy by 2050[1] will likely require rapid deployment of wind power. As of March 2022, the US had around 135 gigawatts (GW) of installed onshore wind capacity,[2] but will need at least 527 GW and potentially as much as 2 terawatts (TW, or 2,000 GW), of total onshore wind capacity in 2050.[3] Unprecedented wind generation could be built in the next 30 years, facilitated in part by incentives in the Inflation Reduction Act.[4] This additional wind development will likely be concentrated in areas that are rich in wind resources and have a relatively easy path to connection to the grid.[5]

As wind facilities proliferate, conflict over access to wind as a resource will likely increase. Specifically, wind facilities sited close to each other can create “wind wakes” that inhibit wind flow and reduce the efficiency and profitability of neighboring wind facilities. The legal rights of a downstream wind facility in relation to an upstream wind facility, or to any other upstream land use that obstructs the flow of wind, are not clear in many parts of the US. This uncertainty can lead to inefficiencies in investment and deployment of wind power. Scientists and legal scholars have raised concerns about this problem for more than a decade, and it will become increasingly important to implement solutions now that the US has set clear goals to decarbonize the grid.

In this paper I provide an overview of conflicts over wind wakes and flag recent developments in case law that address this issue. Specifically, I analyze a 2021 Appellate Court of Maryland ruling that rejected several promising claims a downwind developer made against an upwind landowner. This ruling, in conjunction with the history of court rulings on wind rights, suggests that legislative or regulatory intervention is likely necessary to encourage effective and efficient wind development. I then highlight current examples of tools that jurisdictions have used to ameliorate the wind wake issue and survey the academic literature on proposed solutions to serve as a guide for states that wish to attract wind development.

What Is A Wind Wake and Why Does It Matter?

Wind facilities have a significant physical footprint.[6] Installing 1.5 TW of new onshore wind capacity, for example, could require 550,000 km2 of land,[7] a combined area slightly larger than California.[8] Wind facilities also face location constraints.[9] As of 2016, 89 percent of US wind facilities were located within 40 km of another wind facility.[10] As the US deploys more wind, some wind facilities will necessarily be sited adjacent to existing or planned wind facilities[11] or other objects[12] that could impede air flow.

The proximity of wind facilities to each other and the predictability of wind flow are important factors in planning efficient wind power production. When turbines extract energy from wind, they create wind wakes in which wind flow is slower and more turbulent.[13] Turbines located too closely downstream to other turbines face both energy loss from reduced velocity in the wind stream and damage to machinery from increased turbulence (also called wake damage or turbulence effect).[14] Though a variety of factors affect the size of wind wakes and studies about them are ongoing,[15] evidence from onshore wind facilities in West Texas suggests that wake effects from the construction of an upwind facility spanned three counties and reduced generation at a downwind facility by around 121 gigawatt hours (GWh) over the course of six years, which resulted in lost sales of $730,000± $485,000 annually.[16] Impacts on this scale are not likely to halt all wind development, but they will matter on the margins, especially as increased density of wind facilities creates more potential for conflicts over access to wind.

The Murky Rights at the Center of the Wake Problem

Despite the increasing importance and likelihood of conflicts caused by wind wake effects between neighboring facilities, US law on the matter is sparse. It is not clear in most jurisdictions who, if anyone, has a legally protected property interest in the wind and how much wind that legally protected right entails. The US as a whole “lacks a comprehensive national standard, federal guidelines, legislation, or a regulatory structure that establishes a unified approach to wind rights.”[17]

The few court cases that address the existence of state-specific[18] common law rights to wind flow[19] have suggested that upwind users have an absolute right to use or obstruct the wind flowing over their land, though the outer bounds of this right have not been fully tested. While a few states have passed laws specifically articulating the rights of wind power developers to wind flow, most have not. [20] Absent laws that override common law property principles on the wind rights issue, developers are left with two legal claims that they can bring in court to get monetary compensation or stop upwind conduct: negligence and nuisance. Downstream developers are not likely to prevail on negligence claims because success requires a legal right to wind flow, which does not exist in most jurisdictions. Similarly, nuisance claims will fail because nearby landowners do not have legal duties that would make building obstructions or other turbines unreasonable or unlawful.

The legal murkiness of wind rights means that developers in jurisdictions without a clear property right to a certain amount of wind have very few options to either stop the wind-obstructing activity or recover any lost revenue. Without reliable recourse from common law or statute, developers have instead leased or purchased inefficient “moats” of land around their wind facilities to ensure that they are unimpeded by competing facilities.[21]

How Have Courts Evaluated Claims Related to Wind Rights?

Two court cases have addressed whether a wind developer downstream of an obstruction has a right to wind flow. One other case discussed a theoretical right to wind flow but did not issue any legally binding rulings.

The earliest case concerning damages for obstructions to wind flow, Choctaw, Oklahoma & Texas Railroad Company v. True, was decided in 1904.[22] In Choctaw, a landowner appealed the amount of money they received as compensation for a railroad’s effect on the value of their land.[23] When reconsidering how much compensation the landowner was entitled to, the Court of Civil Appeals of Texas recognized a right to wind flow by considering the costs associated with the reduction of wind to one of the plaintiffs’ windmills from the railroad’s construction of a 30-foot-high embankment.[24] The opinion was brief, however, and contained little reasoning.

In 2012, in Muscarello v. Winnebago County Board, a landowner requested compensation for reductions in property value allegedly caused by Winnebago County’s wind permitting ordinance. [25] The landowner argued that the ordinance deprived her property “of the full extent of the kinetic energy of the wind and air as it enters” the property.[26] The Seventh Circuit dismissed the landowner’s claims about compensation on other grounds,[27] so it did not issue a legally binding ruling about whether it considered “kinetic energy of the wind and air” to be part of the landowner’s property. But the court suggested that even if the plaintiff had a property interest in the wind energy flowing across her property, “the only value of that energy would be to power a wind farm on her property—and she is opposed to wind farming.”[28] The court also suggested that it would be more “sensible” for the plaintiff to argue nuisance rather than “supposing. . . that she has a property right in her neighbors’ use of their lands.”[29]

The issue resurfaced in earnest in a 2021 Appellate Court of Maryland case, Gestamp Wind North America, Inc. v. Alliance Coal, LLC.[30] In Gestamp, a wind development company owned a 20-turbine wind facility and had contracted with a coal cleaning plant operator to use portions of the coal plant’s land.[31] The wind company requested damages on the theory that the defendant’s coal refuse pile had grown so tall[32] that it was interfering with wind flow to the wind company’s turbines.[33] The wind company argued that under Maryland law, they could receive damages both because of the law on nuisance[34] and on negligence[35] and urged the court to follow Texas’ approach to damages for obstructions to wind in Choctaw.[36]

On the nuisance claim, the Maryland court held that the wind company could not obtain damages because under Maryland law, “absent an agreement between the parties or a government regulation, a property owner has no right to prevent a neighbor from altering its property in ways that affect air and light on the plaintiff’s property.”[37] The court found that the coal processing plant did not have a background legal obligation to avoid affecting wind flow across the wind company’s land, though a statute or a contract between the wind and coal companies could create an obligation.

On the negligence claim, the Maryland court found that the coal processing company did not have a duty to avoid interfering with the efficiency of the wind company’s turbines, and thus the wind company could not obtain damages.[38] The court reasoned that the contractual agreement between the parties did not concern the land where the coal processing company kept its coal refuse piles,  and did not prevent the coal processing company from using its land to raise refuse piles in general.[39]

Finally, the court noted that Choctaw was too different from the case at hand because Choctaw had not addressed a landowner’s duties toward neighboring properties.[40]

Gestamp Wind is the latest, clearest example of a court declining to recognize a property right in wind flow sufficient to support damages claims for wind energy loss. The Maryland court’s analysis on both the nuisance and negligence claims suggests that developers may wish to include explicit clauses concerning wind obstructions when negotiating easement agreements with surrounding parcels. The court’s analysis also represents a more upstream landowner-friendly position than the view suggested in Muscarello, as the Gestamp view of wind rights declines to carve a right to obstruct even actively used wind out of a neighboring landowner’s property entitlements.

What Legislative Tools Could Clarify Wind Rights?

As courts have thus far declined to protect wind flow rights, in the following sections I highlight existing and proposed tools that jurisdictions can adopt to protect wind flow rights. These could help provide certainty to wind developers and, in turn, enable efficient use of the most productive wind regions in the US.

Some local and federal laws currently grant protected access to wind flow to first movers by: 1) setting minimum distances between turbines and property lines and 2) authorizing damages for obstructions to wind flow. Minimum distances, or “setbacks” and “wind access buffers,” are currently the most used legislative tools. Jurisdictions may also grant permits that protect a developer’s wind rights against developers that subsequently obstruct wind to the permitted developer’s turbines.

Minimum setback or wind access buffer provisions prohibit wind power development within a certain distance of the shared property line between landowners.[41] Most setback requirements are designed to protect property and ensure public safety in the event of incidents such as turbine towers or blades falling.[42] As a result, such provisions are based on the height of the turbine being constructed,[43] with most state and model local ordinances calling for a setback buffer of 1 to 1.5 times the total turbine height.[44] Because these setbacks are not tailored to wind wakes, they imperfectly protect the right to wind flow.

Jurisdictions could consider implementing laws at the state or local level to mandate buffers that are designed not just for public safety but also for avoiding wind wakes. For example, setback guidelines such as the ones adopted in Minnesota,[45] Oregon,[46] and on public lands overseen by the Bureau of Land Management[47] specifically account for wind wakes and have the stated intention of protecting the wind flow rights of adjacent or nonproducing owners. Setbacks that can explicitly be waived or superseded by private contractual agreements between landowners, such as the one adopted in Riverside County, California, also offer an avenue for protecting wind flow rights, since these agreements can account for the impact of wind wakes.[48]

Some jurisdictions have enacted laws specifically authorizing damages for reduced access to wind.[49] In Wisconsin, for example, the owners of wind energy systems who receive a permit from the state to operate are entitled to damages, court costs, and reasonable attorney’s fees from persons who subsequently use their property in a way that creates an obstruction to the wind energy system.[50] This type of permitting regime is tailored to the idiosyncrasies of wind flow and wind wakes. It also allocates the right to wind flow to the first developer to establish a wind energy system, although it does not protect a wind developer from obstructions that existed on or before May 7, 1994 or which received a building permit or existed prior to the installation of a wind energy system. [51]

What Should a Wind Rights Regime Look Like?

Scholars have proposed a variety of solutions to the problem of competing uses of the wind. Several solutions propose to retain private interests in the wind but clarify the procedures for dealing with conflicting uses. For example, in a 2009 article, Professor Troy Rule argues that conflicts over wind streams should be governed by a rule that grants an initial entitlement to wind flow to the upstream developer but reserves a right for the downstream developer to purchase the entitlement for an objective, non-negotiated sum.[52] Professor Rule explains that such a rule could be implemented through local zoning ordinances that create areas in which wind facilities may be sited only if downwind developers do not object in a timely manner.[53]

Approaches such as this, which place the burden on downstream developers to estimate the value of their wind rights and keep abreast of upwind developments, have the advantage of simplicity and predictability. However, they may not prevent downstream developers from buying up or otherwise restricting development on the land around their wind facilities when the costs of valuation and surveillance outweigh the costs of paying to restrict conflicting development. Thus, the problem of inefficient land use may persist.

Other solutions propose modelling a wind rights regime based on existing natural resource regimes that recognize correlative rights. For instance, in a 2015 article, Professor Yael Lifshitz suggests using an administrative permitting system modeled after a regulated riparian water rights regime, in which an administrative state agency allocates tradeable rights based on ownership of the land underlying the wind flow and on reasonable use of the wind resource.[54] Other scholars suggest borrowing from mineral law. For example, in a 2021 article Professor K.K. DuVivier proposes to adapt federal oil and gas regulations that require lessees of a common offshore mineral deposit to develop their parcels cooperatively and prevent waste to offshore wind leasing areas. [55] This would require wind developers to share development plans with adjacent developers early and the government to approve wind farm layouts, giving all developers in the scheme a share of production revenue regardless of whether they own the generating turbine.[56] Similarly, in a 2022 article in the West Virginia Law Review Martin Lockman proposes using a classified-share unitization scheme, which would allow community members whose property interests are affected by particular wind use decisions to vote on such uses.[57]

While correlative rights regimes may be better able to ensure overall productivity of a natural resource compared to frameworks that shift allocations between individuals, they can be plagued by problems with predictability and enforcement.[58] The success of these approaches will likely depend on how use of the resource is monitored and how tractable and specific the legal rules associated with shared use of the wind can become.

[1] Fact Sheet: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22, 2021).

[2] EIA, Today In Energy: Developers plan to add 6 gigawatts of U.S. offshore wind capacity through 2029 (June 30, 2022).

[3] All pathways to net zero modeled by the Princeton Net Zero America Project (“NZA study”) that are not artificially constrained to historical rates of renewable energy deployment require the installation of between 527 gigawatt (GW) to 2.2 terawatt (TW) of onshore wind generating capacity by 2050. See Larson et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts, interim report, 99, (December 15, 2020). The one pathway that does not involve accelerating rates of wind and solar is artificially constrained to limit wind and solar development at recent rates of deployment (~35 GW/year) and as a result requires a greater amount of costly geologic carbon dioxide storage. Id. at 34. Note that Climeworks, a leading carbon dioxide capture and storage company, has stated that it does not anticipate a cost pathway for geological sequestration below $100 USD/ton. Climeworks Carbon180 Fireside Chat on the Future of DAC Policy (Mar. 17 2022).

[4] DOE WINDExchange, Production Tax Credit and Investment Tax Credit for Wind Energy.

[5] Larson et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts, interim report, 101 (December 15, 2020) (“Finding sites suitable to develop projects presents a potential bottleneck to wind and solar deployment.”). See also ESIG, Transmission Planning for 100% Clean Electricity, 6 (2021) (“. . . of the energy technologies available today, wind and solar generation enabled by storage and transmission are the lowest-cost options available to meet clean energy targets . . . the scale of new wind, solar, storage, and transmission needed to meet these goals is much larger than recent deployment levels”); CATF, How Are We Going To Build All That Clean Energy Infrastructure?, 8 (Aug. 2021).

[6] Onshore wind power has only an average surface power density of 2.7 MW/km2. Larson et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts, interim report, 102 (Dec. 15, 2020).

[7] Id. at 113.

[8] Census Bureau, State Area Measurements and Internal Point Coordinates (2010).

[9] Wind resources are concentrated in certain parts of the country and large swathes of land must be reserved for other uses. Larson et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts, interim report, 103 (Dec. 15, 2020).

[10] Lundquist, DuVivier et al., “Costs and consequences of wind turbine wake effects arising from uncoordinated wind energy development”, Nature Energy 4, 26–34 (2019). https://doi.org/10.1038/s41560-018-0281-2.

[11] See e.g., Larson et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts, interim report, 123 (Dec. 15, 2020) (St. Louis, MO); Id. at 124 (Columbus, OH); Id. at 125 (Fort Worth, TX); Id. at 127 (Minneapolis, MN); Id. at 128 (Rochester, NY).

[12] Coal refuse pile grew by more than 80 feet and allegedly interfered with operation of wind turbines. Brief for Appellants at 1, Gestamp Wind North America, Inc. v. Alliance Coal, LLC, WL 3612747 (Md. Ct. Spec. App. Aug. 16, 2021), 2020 WL 10692454

[13] Gonzalez-Longatt et al., “Wake Effect in Wind Farm Performance: Steady State and Dynamic Behavior”, Renewable Energy, 1–10, 1 (2011).

[14] K.K. DuVivier and Brendan T. Mooney, Moat Mentality: Onshore And Offshore Approaches To Wind Waking, 1 Notre Dame J. Emerging Tech. 1, 11 (2020).

[15] Gonzalez-Longatt et al., “Wake Effect in Wind Farm Performance: Steady State and Dynamic Behavior, Renewable Energy, 1-10, 1 (2011) (Factors include wind speed, wind distribution, spacing and layout of turbines); Reducing Wind Turbine Wakes Could Save Wind Farms Millions (Jan. 21, 2022) (Detailing planned study of wind wakes in five wind farms in Oklahoma).

[16] Lundquist, DuVivier et al., “Costs and consequences of wind turbine wake effects arising from uncoordinated wind energy development”, Nature Energy 4, 26–34, (2019).

[17] Kimberly E. 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, 211–13 (2011).

[18] Property interests are generally defined by state law. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 707 (2010) (citing Phillips v. Washington Legal Foundation, 524 U.S. 156, 164 (1998)).

[19] Note that a separate issue in defining the contours of wind rights is the question of severability, or whether property rights in wind can be traded separately from the land above which they flow. This blog post will not focus on severability and how wind rights relate to the surface estate, but on how one party’s wind rights relate to an adjacent party’s wind rights. The two issues are often linked, however, and there is a small body of case law establishing a property right in wind for the purposes of valuation in some jurisdictions. They are included below as context.

In Contra Costa Water Dist. v. Vaquero Farms, Inc., a California court allowed Contra Costa Water District to sever wind power development rights from the surface estate owned by Vaquero Farms in an eminent domain condemnation. 58 Cal. App. 4th 883, 890 (1997). Although the Water District acquired parcels of land on which Vaquero had leased the exclusive rights to “develop, construct, install, maintain and operate windpower facilities,” “sell electric power generated by windmills”, and “sell or lease the windpower rights,” the Water District declined to compensate Vaquero for the value of those leases. Id. at 891. Instead, the Water District carved out “non-exclusive easements for ‘roadway, ingress and egress, and utility purposes’” for Vaquero Farms. Id. Vaquero asserted that windpower rights could not be severed from the surface estate, but the court held that windpower rights were severable by applying the “substantial rights” test it had applied to telephone poles and other electricity infrastructure. Id. The court reasoned that because the windpower rights are “capable of being bought and sold in the marketplace,” as evidenced by a previous 30-year lease Vaquero had issued to a windpower developer, those rights were “substantial rights” severable from the surface estate. Id. In the 20 years since that case was decided, however, no decisions have cited to Contra Costa for support on the severability of wind rights.

In Romero v Bernell, a New Mexico court evaluated whether a parcel owned by two tenants in common should be partitioned by sale instead of in kind due to the possibility that the value of any wind power developed on the land would not be split equally by a partition in kind. 603 F Supp 2d 1333, 1335 (DNM 2009). The court held that though “[t]he right to harvest wind energy is… an inchoate interest in the land,” the interest “does not become vested until reduced to possession by employing it for a useful purpose.” Id. [internal quotations removed]. The court reasoned that such a treatment of wind rights would be similar to both mineral rights and water rights under New Mexico law, which both assign ownership after capture of the resource. Id.

[20] For example, Wisconsin and Oregon. See Roger A. McEowen, Wind Energy Production: Legal Issues and Related Liability Concerns for Landowners, Iowa State University Center for Agricultural Law and Taxation, 13 (June 20, 2011).

[21] K.K. DuVivier, Preventing Wind Waste, 71 AM. U. L. REV. 1, 57 (2021) (“The lack of regulation from governmental agencies and absence of a clear property rights regime to address the problem have incentivized many developers to create protective “moats” of turbine-free swaths of lands around their projects that could otherwise have been used to exploit the available energy in the wind and convert it to electricity”); K.K. DuVivier & Brendan Mooney, Moat Mentality: Onshore and Offshore Approaches to Wind Waking, 1 Notre Dame J. Emerging Tech. 1, 25–28 (2020).

[22] Choctaw, O. & T.R. Co. v. True, 35 Tex. Civ. App. 309 (1904)

[23] Id. at 310 (1904)

[24] Id. at 309–10.

[25] Muscarello v. Winnebago County Board, 702 F.3d 909, 910 (7th Cir. 2012). The Court held that plaintiff’s state claims are within the federal courts’ supplemental and diversity jurisdiction. Id. at 912.

[26] Id. at 910.

[27] The court reasoned that there was no takings claim at all because no wind facility had even been proposed, so the harm alleged was procedural and “harm caused . . . by a change in the procedural rights of other landowners—a change that imposes no restriction on her use of her land—is too remote to count as a deprivation of property.” Id. at 912–13.

[28] Id. at 911.

[29] Id. at 914.

[30] WL 3612747 (Md. Ct. Spec. App. Aug. 16, 2021). Effective December 14, 2022, the Court of Special Appeals was renamed the Appellate Court of Maryland. https://www.mdcourts.gov/opinions/opinions .

[31] Id. at 1

[32] The pile of coal refuse grew from 3,203.5 feet to 3,285 feet in height between 2000 and 2017. Brief for Appellants at 1, Gestamp Wind North America, Inc. v. Alliance Coal, LLC, WL 3612747 (Md. Ct. Spec. App. Aug. 16, 2021), 2020 WL 10692454.

[33] Id. at 2.

[34] Id. Brief for Appellants at 8–11.

[35] Id. at 11–13.

[36] The wind developer also pointed to cases where other jurisdictions held that wind was a severable property interest, but as noted above these cases get at a slightly different issue than the rights of neighbors as against each other for a quantum of wind flow. Id. Brief for Appellants at 10 fn 6 (citing to Contra Costa Water Dist. v. Vaquero Farms, 58 Ca. App. 4th 883 (1997) and Romero v. Bernell, 603 F. Supp. 2d 1333 (D. N.M 2009)).

[37] Gestamp Wind North America, at 5. The court relied on a line of cases following Maryland’s 1858 rejection of an English “doctrine of ancient lights”, which refused to recognize negative prescriptive easements for light and air due to the young state’s need for “rapidly growing towns and cities.” Id. at 12–13. The court noted that subsequent cases repeatedly affirmed the general proposition that landowners are entitled to unencumbered use of the air above their land. Id.

[38] Id.

[39] Id.

[40] Id. at 7.

[41] Yael R. Lifshitz, Winds of Change: Drawing on Water Law Doctrines to Establish Wind Law, 23 N.Y.U. Envtl. L.J. 434, 455 (2015)

[42] Envtl. L. Inst., Siting Wind Energy Facilities-What Do Local Elected Officials Need to Know, 5 (2013); Kimberly E. Diamond, Wake Effects, Wind Rights, and Wind Turbines: Why Science, Constitutional Rights, and Public Policy Issues Play A Crucial Role, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 813, 822–23 (2016)

[43] Kimberly E. Diamond, Wake Effects, Wind Rights, and Wind Turbines: Why Science, Constitutional Rights, and Public Policy Issues Play A Crucial Role, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 813, 822 (2016) (“in the United States, setback limits are generally not based on wake effect considerations, but, rather, tend to be based on public safety and property protection precautions acceptable to the local community, specifically to protect against a turbine falling or losing one of its blades”).

[44] Id. at 823. (“many states and localities have ordinances mandating a minimum setback distance of approximately 1 to 1.5 times a commercial wind turbine’s height away from the shared property line, as measured from the turbine’s base to such property line”).

[45] Order Establishing General Wind Permit Standards, Docket No. E, G-999/M-07-1102, 4 (Minn. Pub. Utils. Comm’n Jan. 11, 2008) (“The wind access buffer setback is an external setback from lands and wind rights outside of an applicant’s site control, to protect the wind and property rights of persons outside the permitted project boundary and persons within the project boundary who are not participating in the project”).

[46] Or. Rev. Stat. Ann. § 227.290 (3) (“The council may consider, in enacting ordinances governing building setback lines and maximum building height, the impact on available wind resources. The ordinances shall protect an existing wind energy system’s wind source to the extent feasible”).

[47] Yael R. Lifshitz, Winds of Change: Drawing on Water Law Doctrines to Establish Wind Law, 23 N.Y.U. Envtl. L.J. 434, 458–59 (2015) (BLM setback aims to “avoid potential wind turbulence interference issues with adjacent wind facilities”).

[48] Kimberly E. Diamond, Wake Effects, Wind Rights, and Wind Turbines: Why Science, Constitutional Rights, and Public Policy Issues Play A Crucial Role, 40 Wm. & Mary Envtl. L. & Pol’y Rev. 813, 823–24 (2016) (Riverside County in California allows parties to waive minimum setbacks).

[49] Oregon and Wisconsin for example. Roger A. McEowen, Wind Energy Production: Legal Issues and Related Liability Concerns for Landowners, Iowa State University Center for Agricultural Law and Taxation, 13 (June 20, 2011).

[50] Wis. Stat. § 700.41 aims to promote the use of [sic]wind energy by allowing an owner of an active or passive [sic]wind energy system to receive compensation for an obstruction…” and entitles “the owner of a [sic]wind energy system …to receive damages, court costs and reasonable attorney fees from any person who uses property which he or she owns or who permits any other person to use the property in any way which would create an obstruction of the owner’s [sic] wind energy system.” The owner of the solar energy system or wind energy system shall have the burden of showing by a preponderance of the evidence the amount of the damages.

[51] Id.

[52] Troy Rule, A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights, 46 SAN DIEGO L. REV. 207, 236-238 (2009).

[53] Id. at 242.

[54] Yael R. Lifshitz, Winds of Change: Drawing on Water Law Doctrines to Establish Wind Law, 23 N.Y.U. Envtl. L.J. 434, 440 (2015).

[55] K.K. DuVivier, Preventing Wind Waste, 71 Am. U.L. Rev. 1 (2021). As another example, in a 2021 article, Professor Lifshitz highlights the mismatch between the horizontal flow of wind the vertical ownership patterns of land on which the turbine is developed and proposes shifting toward a horizontal ownership regime using unitization and tradeable rights, modeled on laws that address oil and gas over-drilling. Yael R. Lifshitz, The Geometry of Property, 71 U. Toronto L.J. 480 (2021).

[56] K.K. DuVivier, Preventing Wind Waste, 71 Am. U.L. Rev. 1 (2021).

[57] Martin Lockman, FENCING THE WIND: PROPERTY RIGHTS IN RENEWABLE ENERGY, 125 W. Va. L. Rev. 27 (2022).

[58] For example, in states that follow riparianism for surface water management, the number of parties involved and the fact that parties must bring lawsuits after the fact necessitates complex, long-lasting litigations with the opportunity for judge-determined allocations. North Dakota State University, Introduction to Riparian Doctrine.