Emerging Opportunities and Challenges in Small Wind Power
Alfredo Fernandez
Table of Contents
I. Introduction ....................................................................................................................1
II. History of Wind Power .................................................................................................2
III. Small Wind Power .......................................................................................................3
a. Background............................................................................................................................. 3
b. Land Use and Misconceptions .............................................................................................. 4
c. Net Metering ........................................................................................................................... 7
d. The Economic Challenges of Small Wind ............................................................................ 9
e. Grid Restrictions ................................................................................................................. 12
f. Green Building Codes........................................................................................................... 14
g. Changing the Code and Compensation ............................................................................. 16
h. Comparison to Solar ............................................................................................................ 17
i. Nuisances .............................................................................................................................. 18
j. Conclusion ............................................................................................................................. 21
I. Introduction
Wind is the nation’s fastest-growing source of energy.1 Such a statement requires a
serious look at the legal outlook for the up-and-coming energy source. Federal, state, and
local policies play an important role in encouraging wind energy development. Already,
more than 20 states have established renewable portfolio standards (RPS) that require
electricity providers to obtain a portion of their power from renewable sources.2 In
addition, voluntary consumer decisions to purchase green power can provide an
important revenue stream to support investment in wind energy facilities.3

Alfredo Fernandez is a law student attending The University of Connecticut School of Law.
The author would like to thank Professors Elizabeth Burleson and Sara Bronin for their valuable
guidance.
1
U.S. Dept. of Energy, Wind, available at http://www.energy.gov/energysources/wind.htm.
2
U.S. DOE, Wind Powering America, Wind Policy available at
http://www.windpoweringamerica.gov/policy/index.asp.
3
Id.
1
Wind turbines convert the kinetic energy in the wind into mechanical power. This
mechanical power can be used for specific tasks (such as grinding grain or pumping
water). Alternatively, a generator can convert mechanical power into electricity. The
wind turns blades, which spin a shaft. In turn, the shaft connects to a generator that
generates electricity.4 Modern wind turbines fall into two basic groups: the horizontalaxis variety and the vertical-axis variety. Utility-scale, horizontal-axis, turbines range in
size from 100 kilowatts to as large as several megawatts. Larger turbines are grouped
together into wind farms, which provide bulk power to the electrical grid.
This paper analyses the legal climate for small wind development in the United
States. Section II of this paper will cover a brief history of wind power. Section III will
inform the reader on the enthusiasm, progress, and complexities of the small wind
movement. This paper concludes that developing a legal framework for small wind can
facilitate broad use of this renewable resource. While there are challenges in nearly
every aspect of small wind systems, the right combination of government incentives,
public education, and judicial empathy against opponents’ suits could allow the
movement to prosper and allow the everyday citizen to do her part in bringing America
into its green energy era.
II. History of Wind Power
As early as 5000 B.C., humans have been harnessing the power of the wind.5 By 200
B.C., simple windmills in China were pumping water, while vertical-axis windmills with
4
U.S. Dept. of Energy, How Wind Turbines Work, available at http://www1.eere.energy.gov/
windandhydro/wind_how.html.
5
U.S. Dept of Energy, History of Wind Energy, available at http://www1.eere.energy.gov/
windandhydro/wind_history.html.
2
woven reed sails were grinding grain in Persia and the Middle East.6 Windmill
technology gradually spread to Europe and the New World. Wind turbines started
generating electricity at the close of the 19th century. The popularity of using the energy
in the wind has always fluctuated with the price of fossil fuels. When fuel prices fell after
World War II, interest in wind turbines waned. But when the price of oil skyrocketed in
the 1970s, so did worldwide interest in wind turbine generators.7 Today, the lessons
learned from more than a decade of operating wind power plants, along with continuing
R&D, have made wind-generated electricity very close in cost to the power from
conventional utility generation in some locations.8
III. Small Wind Energy
a. Background
The latest trend in renewable energy seems to be that of small wind turbines installed
on roofs. Kate Galbraith observes that the spread of the big turbines and a general
fascination with all things green are helping to spur interest in microturbines, creating a
movement somewhere on the border between a hobby and an environmental fashion
statement.9 Small wind turbines, classified as producing 100kW or less,10 can be
installed in rural, suburban and urban settings. Freestanding small turbines are commonly
mounted on a pole at least 30 feet tall. Sometimes such turbines are as high as 120 feet
since that towers this tall are necessary to raise the wind turbine above turbulence
6
Id.
Id.
8
Id.
9
See Kate Galbraith, Assessing the Value of Small Wind Turbines, N.Y. Times, Sept. 3, 2008,
available at http://www.nytimes.com/2008/09/04/business/04wind.html?r=1.
10
See AWEA, Small Wind, http://www.awea.org/smallwind/.
7
3
generated by obstacles on the ground and trees.11 Wind velocity and, therefore wind
turbine performance, increases with altitude.12 The urban devices, however, are small
enough to mount to the roof of residential or commercial buildings and generate
electricity not only for the building they sit on, but also have the chance to feed back into
the grid.
The most common small wind turbine is a smaller version of the familiar large 3bladed turbine.13 There are, however, many more designs for small wind turbines
originating from all over the world. There is a healthy mix of horizontal and vertical axis
designs available. Many small start-up companies strive to combine functionality with a
visually pleasing design to avoid safety and aesthetics complaints from the customer
base, or more likely, the customer’s neighbors.
b. Land Use and Misconceptions
There are a few land use issues that arise with small wind systems that are critical for
the successful placement of a wind turbine. Good practice requires that the turbine in a
residential district be “set back” from a property line some given distance.14 This most
commonly ends up being the tower height plus the length of one blade, though it could be
much less if there are no affected parties near the property line.15 Since these turbines are
tall, it is likely that they will be visible at some distance. It is undisputed that some
people object to their appearance. Legislating “taste” becomes difficult, and sometimes
even Homeowners’ Associations deflect the issue. Aesthetically speaking, it is harder to
See AWEA, Wind Energy FAQ’s, available at http://www.awea.org/faq/rsdntqa.html.
Id.
13
See AWEA, In the Public Interest: How and Why to Permit for Small Wind Systems, 2,
available at http://www.awea.org/smallwind/pdf/InThePublicInterest.pdf.
14
See AWEA, In the Public Interest: How and Why to Permit for Small Wind Systems, 8,
[hereinafter Permit], available at http://www.awea.org/smallwind/pdf/InThePublicInterest.pdf.
15
Id.
11
12
4
draw a line as to what is attractive and what is not. Nick Sagrillo, of Sagrillo Power and
Light, points out that there are emotion-based arguments on both sides of the debate.16
While cities already allow water towers, billboards, communication towers, satellite
dishes and utility lines as part of the landscape, it’s been noted that these fixtures don’t
have moving parts, nor are they subject to zoning meetings.17 With little regulation on
these products yet, common sense has been the understood law with no obnoxious colors
or gaudy decorations or advertising.
As the large utility-sized turbines are getting bigger, they can rotate more slowly, and
are becoming virtually silent. Small wind does not have that luxury. Mechanically,
smaller rotors require higher tip speeds, causing more noise. However, the decibel levels
these make are comparable to rustling trees and generally no more than ambient sounds
well below what would qualify as a nuisance.18 No study had ever concluded that wind
turbines (large or small) have had a depressing effect on nearby property values.19 In fact
a recent California Energy Commission study found that most people are willing to pay
more for homes equipped with solar panels or wind turbines. 20
There are several common misconceptions about small wind that deserve some
clarification. The shadow flicker effect is the term given to visible shadows on the
ground caused by the spinning blades. At the speeds of small turbines, however,
shadows are essentially invisible unless it’s not operating at its design speed. The turbines
16
See Mick Sagrillo, Aesthetics Issues and Residential Wind Turbines, May 2004, available at
http://www.awea.org/faq/sagrillo/ms_aesthetics_0405.html
17
Id.
18
Permit, supra note 14, at 11.
19
Permit, supra note 14, at 13.
20
California Energy Commission, Renewable Energy Study, Nov. 2001. Pg 28, available at
http://www.energy.ca.gov/reports/2002-04-03_500-02-016.pdf.
5
are designed to stay still until they feel a minimum wind speed, or cut speed, so chances
of observing the shadow flicker are small.21
The most common and most exaggerated misconception about large and small
turbines is that they are harmful to birds and bats. Even the vastly larger, utility-scale
wind farms account for less than 0.003% of all human caused bird deaths.22 Much more
birds are killed from windows and house cats.23 Small wind turbines, located in
residential areas, will likely see even less migratory traffic. In fact, conservation groups
such as the American Bird Conservancy have supported continued wind project
developments, so long as these projects work carefully to minimize harm to birds and
other wildlife via a detailed environmental impact assessment and consideration of the
habitats and migratory routes that a new development could threaten.24
Anti-wind groups have proposed that wind turbines in residential areas are a safety
hazard since ice can form on the blades and could potentially dislodge and get “thrown”,
causing damage. Sagrillo points out that while ice is indeed likely to form at operating
speeds, the proposed damaged scenarios are very unlikely, if possible at all.25 To put this
in perspective, a 1998 study calculated that the risk of personal or property damage from
ice falling from a (large) turbine is lower than the risk of being struck by lightning.26
c. Net Metering
21
Permit, supra note 14, at 17.
National Academy of Sciences, Environmental Impacts of Wind-Energy Projects, 2007,
available at http://books.nap.edu/catalog.php?record_id=11935.
23
AWEA, Wind Outlook 2009, available at www.awea.org/pubs/documents/outlook_2009.pdf
24
Stephen Harland Butler, Headwinds to a Clean Energy Future: Nuisance Suits Against Wind
Energy Projects in the United States, 97 Cal. L. Rev. 1337 (2009).
25
See Mick Sagrillo, Home-Sized Wind Turbines and Flying Ice, June 2003, available at
http://www.awea.org/faq/sagrillo/ms_ice_0306.html
26
Permit, supra note 14, at 19.
22
6
The main objective of the small wind systems is to lower one’s electricity bill while
simultaneously reducing dependence on fossil fuel sources for electricity. Owners have
the choice of making their wind system a stand-alone system or connecting them to the
utility grid. Connecting to the grid requires the approval of the utility. Technical and
insurance requirements for interconnection vary, as do metering arrangements.27 Despite
the extra requirements, connecting to the grid is usually the smarter choice economically.
If the state has a net metering arrangement, the turbine owners can sell their excess
electricity to the utility. Excess electricity produced by the wind turbine will spin the
existing home or business electricity meter backwards, effectively banking the electricity
until the customer needs it. This provides the customer with full retail value for all the
electricity produced.28,29 The American Wind Energy Association believes there are three
reasons net metering is important. First, net metering eliminates the need for a battery
since owners can pull from the grid when they need electricity whether or not they have it
banked.30 Since wind is an intermittent resource, this ability is important and makes the
pay-back period for the investment much shorter. Second, net-metering users do not need
to install an additional energy meter.31 Third, it’s an easy incentive for people to use
small wind to provide benefits to themselves and community.32 According to the
AWEA, thirty states currently require some utilities to offer net metering for small wind
systems, although the requirements vary from state to state.33 In most of the states with
27
See AWEA: Small Wind Tool Box, available at http://www.awea.org/smallwind/toolbox2/
See AWEA Wind Energy FAQ’s, available at http://www.awea.org/faq/netbdef.Html.
29
Public Utility Regulatory Policies Act (PURPA) Section 210 covers regulations applicable to
small power production, available at www.ferc.gov/whats-new/comm-meet/011906/E-3.pdf.
30
See Wind Energy FAQ’s, supra note 27.
31
Id.
32
Id.
33
Id.
28
7
net metering statutes, all utilities are required to offer net metering for some wind
systems, although many states limit eligibility to small systems. 34
In addition to net metering where available, the leading federal incentive for wind
energy is the Production Tax Credit. The PTC is a 2.1 cents per kilowatt-hour credit for
electricity generated by wind turbines for the first ten years of operation.35 The PTC,
which incentivizes various forms of renewable energy, is especially important for wind,
since it is one of the only forms of federal regulation created to promote the use of wind.
Originally, other forms, such as photovoltaic power and fuel cells, have other avenues
such as the Investment Tax Credit (ITC), which provides a 30% credit, which is often a
more attractive choice than the PTC.36 This measure is designed to promote the
development of renewable energy in instances of economic uncertainty where a PTC is
not as enticing to developers as an ITC.37 These incentives are important for the
expansion of renewable energy. The Energy Information Administration predicts that,
with incentives, the wind generation would double and the solar generation increase by
15% compared to the “business as usual” case with no incentives.38 Christine de Real
Azua observes that the passage of the PTC did not immediately result in the development
of new wind farms in the United States. During the period from 1993 to 1998, U.S. wind
energy generating capacity, concentrated in California, stagnated at about 1700 MW.39 It
is worth noting that the majority of California’s wind energy comes from large onshore
34
Id.
See AWEA, Production Tax Credit, available at http://awea.org/policy/ptc.html.
36
See Union of Concerned Scientists, Production Tax Credit for Renewable Energy, available at
http://www.ucsusa.org/clean_energy/solutions/big_picture_solutions /production-tax-creditfor.html.
37
Id.
38
Id.
39
Christine de Real Azua, Essay, The Future of Wind Energy, 14 Tul. Envtl. L.J. 485, 500 (2001).
35
8
wind farms. David Mears notes that the PTC applies only to large utility-scale wind
projects, not to small wind turbines.40 Fortunately, in 2008, a federal-level ITC became
available to help consumers purchase small wind turbines for home, farm, or business
use. Owners of small wind systems with 100 kilowatts (kW) of capacity or less can
receive a credit for 30% of the total installed cost of the system.41 Also available are the
federal Modified Accelerated Cost-Recovery System, which permits businesses to
recover investments in certain property, including small wind facilities, through
depreciation deductions42 and the Residential Renewable Energy Tax Credit, which
provides individual taxpayers with a tax credit equal to 30% of the cost of installing
renewable energy systems in a dwelling.43
d. The Economic Challenge of Small Wind
Many consumers can become discouraged from investing in a small wind system
because of high up-front costs, local zoning ordinances, and difficulties in securing an
interconnection and net metering agreement with their local utility.44 The main measure
of economic viability of these systems is the “pay-back” period, or how long it takes for
the savings earned by the system to offset the initial and operating costs. An obvious cost
of switching from traditional electricity sources to renewable energy sources is the cost of
40
David Mears, Note, Feasibility of Residential Wind Energy: The Lack of Regulatory
Integration for Local Communities, 37 Real Est. L.J. 133 (2008).
41
AWEA, Legislative Affairs, available at http://www.awea.org/legislative.
42
Database of State Incentives for Renewables & Efficiency (DSIRE), Modified Accelerated
Cost-Recovery (MACRS) + Bonus Depreciation (2008-2009), available at
http://www.dsireusa.org/library/includes/incentive2.cfm?Incentive_Code=US06F&state=US&Cu
rrentPageID=1&RE=1&EE=0
43
Patricia Salkin and Ashire Ostrow Cooperative Federalism and Wind: A New Framework for
Achieving Sustainability, 37 Hofstra L. Rev. 101 (2009)
44
Real de Azua, supra note 38, at 521.
9
the particular renewable energy system.45 A small turbine can cost anywhere from $6,000
to $22,000 installed, depending upon size, application and service agreements with the
manufacturer.46 After installation, there are a few hidden costs that consumers should be
aware of. Depending on how the state's net-metering program is regulated, other hidden
costs of installing a renewable energy system can include any combination of the
following costs: connection fees, competitive transition charges (CTC), liability
insurance, design and engineering fees, building fees, property taxes, sales taxes, utilitymetering fees, and standby charges.47 The consumer must evaluate all these costs to
determine whether installing the system is the right economic move. This depends
largely on the quality of the wind flow and the cost of utility-supplied electricity in that
area.
Generally speaking, rural and suburban small wind turbines have a likelier chance at
economic success than do the urban roof-based wind systems. Urban wind systems only
account for less than 1% of all wind applications48, however some companies have found
success in the market. The most established company selling rooftop turbines is
AeroVironment, a California company better known for making unmanned aerial
vehicles.49 AeroVironment officials say that rooftop turbines at windy sites in states with
costly electricity could pay for themselves in four to eight years, but acknowledge that in
places with low power prices, the turbines may never recoup their costs.50 Mears points
45
Valerie Faden, Student Article, Net Metering of Renewable Energy: How Traditional
Electricity Suppliers Fight to Keep You in the Dark, 10 Widener J. Pub. L. 109, 121 (2000).
46
AWEA, Wind Energy FAQ’s, available at http://www.awea.org/faq/rsdntqa.html.
47
Faden, supra note 42
48 See AWEA, In the Public Interest: How and Why to Permit for Small Wind Systems, 14,
available at http://www.awea.org/smallwind/pdf/InThePublicInterest.pdf.
49
Galbraith, supra note 9.
50
Id.
10
out that California, where net metering and our nation's highest electric rates are
combined with a substantial rebate program and a state tax credit for small wind owners
is a good choice. Those wind system owners with strong wind resources can recoup their
initial investment typically in less than ten years, while enjoying essentially free
electricity for the remainder of the system's thirty year life cycle. This can amount to a
return of up to 15-20%, depending in electric usage and the available wind resources.51
This example is for tower-mounted turbines favorable sited in good wind conditions. Not
only are cities less windy than the countryside, but the air is choppier because of trees
and the variation in heights in buildings. Wind patterns behave very differently around
buildings and in densely-built areas, so a turbine must be sited precisely in order to
receive sufficient wind.52 Ron Stimmel, an advocate of small wind systems at the
American Wind Energy Association, says “In an urban environment, more times than not
you’re better off with a solar panel.”53 Despite the challenging economics, Small
turbines have already appeared at the Brooklyn Navy Yard, atop an office building at
Logan International Airport in Boston54, and just recently, on the roof of Reno, Nevada’s
city hall.55 Rooftop wind advocates are hopeful that output will turn out to be healthy in
windy areas, and they also think that prices for small turbines will come down as the
market grows, altering the economics.56
51
Mears, supra note 39.
Permit, supra note 14, at 14.
53
Galbraith, supra note 9.
54
Id.
55
2 wind turbines installed atop Reno City Hall, June 3, 2010, available at
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060304586.html.
56
Galbraith, supra note 9.
52
11
e. Grid Restrictions
However, it is a distinct possibility that even when small turbines produce electricity,
“consumer-generators” will not be able to feed it back into today’s outdated grid.
Matthew Wald of the New York Times observes that while the United States today gets
barely 1 percent of its electricity from wind turbines, many experts are starting to think
that figure could hit 20 percent.57 Along with the growing supply of solar power, today’s
grid is not suited to handle additional energy in its various forms. Wald summarizes the
problem as one where the transmission lines are simply too small for the amount of
energy power companies would like to squeeze through them.58 To keep the grid in
balance and operational within this new reality, there must be the proper mix of new
resources not only for primary production of power, but of additional new resources to
respond to the constant intermittency of a system more dependent on renewable
resources.59 Since renewable power sources have near zero operating costs, they will be
run as much as possible, when available.60 When the wind suddenly ceases to blow or
the sun is unexpectedly blocked by clouds and renewable power generation units are not
available, there is no ability to quickly start conventional peaking units.61 What backup
sources the grid does have are not quick-start or suited to serve a grid utilizing
intermittent sources.62 In 2008, Texas, the largest producer of wind energy in the country
Matthew Wald, Wind Energy Bumps Into Power Grid’s Limits, N.Y. Times, August 26, 2006,
available at http://www.nytimes.com/2008/08/27/business/27grid.html?pagewanted=1.
58
Id.
59
Steven Ferrey, Restructuring a Green Grid: Legal Challenges to Accommodate New
Renewable Energy Infrastructure, 39 Envtl.L. 977, (2009).
60
See id.
61
See id.
62
See id.
57
12
approved a $4.93 billion wind-power transmission project to help the congestion.63 Other
states may find the Texas model difficult to emulate. The state is unique in having its
own electricity grid.64 The power grid in the United States is balkanized, with about
200,000 miles of power lines divided among 500 owners.65 Big transmission upgrades
often involve multiple companies, many state governments and numerous permits, often
provoking fights among property owners.66
Improving the “third world”67 grid however needs to be a national priority, despite
conflicting local interests. Kevin Kolevar, assistant secretary for electricity delivery and
energy reliability said “Modernizing the electric infrastructure is an urgent national
problem, and one we all share.”68 The cost, however, could be on the order of $60
billion, despite not bringing in much new technology. Even spreading the cost over its
millions of users and over time, many elected local officials whose constituents live in
areas with low electric rates oppose a multi-region project of this sort since it would only
hike up their rates.69 But Bill Richardson, the governor of New Mexico and a former
energy secretary, contends that piecemeal efforts are not enough to tap the nation’s
potential for renewable energy.70 The governor also notes the lack of leadership in this
project, scolding the federal government for not investing, not setting good regulatory
mechanisms, and basically taking a back seat on everything except drilling and fossil
63
Kate Galbraith, Texas approves a $4.93 Billion Wind-Power Project, N.Y. Times, July 19,
2008, available at http://www.nytimes.com/2008/07/19/business/19wind.html.
64
Id.
65
Wald, supra note 54.
66
Id.
67
Id.
68
Id.
69
Id.
70
Id.
13
fuels.71 One of the few bright spots in this area is a 30% advanced energy facilities tax
credit that applies to transmission and grid-related new equipment as part of the Obama
stimulus package.72
While the focus on the grid to date has been about how to pay for and extend the
copper cable to the new renewable generation sources, an equally challenging and
equally expensive component will be the phased creation of new quick-start backup and
peak-power generation resources to necessarily supplement the intermittent supply of
renewable resources.73 The states have taken the lead on various renewable energy and
carbon-reduction policy incentives. However, the states have not focused on legal
constraints within the U.S. Constitution.74 While an improved electric grid and
transmission system are serious national concerns and challenges, and could easily fill an
article on its own, any further discussion is beyond the scope of this paper. The author
encourages the current and future administrations and the Department of Energy to
embrace the challenge of modernizing the national grid and to organize the appropriate
team for the progress of the nation.
f. Green Building Codes
The next step for small wind and solar power proponents is tackling the challenge of
getting renewable energy systems on new buildings. The leading regulation in this
respect is the building code, traditionally a local duty. Though there are benefits to
empowering local communities to regulate land use, in the context of wind energy more
centralized regulation is desirable, and not entirely revolutionary. In fact, notwithstanding
71
Id.
Ferrey, supra note 59.
73
Id.
74
Id.
72
14
the localist nature of land use law, the federal government has long played a role in
shaping land use policies.75 Sara Bronin notes that the rapidly growing green-building
movement challenges the notion that traditional land use regulation is or should be an
exclusively local function.76 Leadership in Energy and Environmental Design (LEED)
serves as the prevailing green-building ratings system and therefore is the most effective
reference point for defining green building. Despite only accounting for the construction
process, LEED encourages energy-efficient technologies such as solar panels and fuel
cells.77 Several states, including California, Washington, and Connecticut, have mandated
that all state buildings meet LEED criteria. Even some local governments have joined the
trend: the American Institute of Architects identifies over seventy localities that have
implemented some green requirements for municipal buildings.78 Presumably operating
on the assumption that modern technologies are unattractive while adding no nonaesthetic value to the property, some communities, however, explicitly use design
controls to prevent their installation.79 Solar panels for example, highlight the tension
between the aesthetic concerns of design control boards and the energy-efficiency
concerns of environmental advocates. Rather than celebrating and fully utilizing their
energy-efficient technologies, homeowners are forced to hide or dismantle them. Small
wind turbines, while less common than solar panels at this point will face similar
challenges, both in rural settings with tall towers and urban settings with rooftop
installations.
75
Salkin, suprai note 43.
Sara Bronin, Article, The Quiet Revolution Revived: Sustainable Design, Land Use Regulation,
and the States, 93 Minn. L. Rev. 231, 240, 241 (2008).
77
Id.
78
Id. at 247.
79
Id. at 250.
76
15
g. Changing the Code and Compensation
The author proposes that as soon as the electric grid can handle increased electricity
loads from renewable sources and long distance transmission across the country,
Congress should be prepared to further incentivize consumers and developers to include
renewable energy systems on new buildings and developments. While mandatory
inclusion will run into a government takings question, crafty incentives will help the
nation as a whole in reducing fossil fuel dependency. In Loretto v. Teleprompter
Manhattan CATV Corp., the Supreme Court held that the Manhattan Teleprompter's
minor but permanent physical occupation of Loretto's property constitutes a regulatory
taking of property for which just compensation is due under the Fifth and Fourteenth
Amendments of the Constitution.80 In Loretto, we learned that objects as simple as cable
wires required just compensation. With this precedent, the government would face a
serious challenge if it ever were to require the installation of photovoltaic (PV) panels or
small wind systems on the roofs or exterior walls of a building.
Reasonably predicting that the government will not mandate renewable energy
systems on buildings any time soon, Congress may see value in adding incentives for
builders to do so. A major hurdle with that goal is updating the building codes. Sara
Bronin observes that many policy makers think that tinkering with existing codes would
be too confusing.81 Chronic understaffing of building departments prevents code officials,
who struggle to keep up with day-to-day enforcement activities, from conducting
thorough reviews or proposing code modifications. This hinders reform because these
80
81
Loretto v. Teleprompter Manhattan CATV Corp. 458 U.S. 419 (1982).
Sara Bronin, Rehabilitating Rehab Through State Building Codes, 115 Yale L.J. 1744 (2006).
16
officials best know codes’ strength and weaknesses.82 The logistical challenge of code
officials, the lack of motivation from the federal government, the lack of a clear leader in
this concept, as well as the technical and regulatory content of such revisions need to be
dealt with in order to advance this vision. This is a momentous undertaking that should
be appreciated by elected officials on all levels.
h. Comparison to Solar
The comparison of small wind systems to solar panels is inevitable. They both are
technologies gaining in popularity with the common citizen experiencing “green-fever”.
They are both relatively accessible for use on commercial and residential properties, both
as freestanding installations or integrated with the building. There are some notable
differences, besides the obvious technical nature of each. Where large wind farms
produce electricity at a lower cost than large solar arrays, this does not hold true for small
wind and small solar. Low-tech Magazine reports that a Dutch study concluded the small
wind electricity would be ten times more expensive than small solar arrays.83 While small
solar may come cheaper than small wind, not every location is meant for PV, namely
property that sits in the shade more often than not. Owners of these properties will feel a
compelling draw to renewable energy system with little dependency on sun light. Small
wind can still run at night and on dark days to help close the gap where PV is less than
ideal. The government recently helped the cause when it included an Investment Tax
Credit for small wind with a credit of 30% for all small wind turbines84 (<100 kW),
82
Id.
Low-tech Magazine, Small Windmills Put to the Test, April 19, 2009, available at
http://www.lowtechmagazine.com/2009/04/small-windmills-test-results.html
84
See DSIRE, Business Energy Investment Tax Credit (ITC), available at
http://www.dsireusa.org/incentives/incentive.cfm?Incentive_Code=US02F.
83
17
putting small wind on equal footing with PV in terms of federal incentives.85
i. Nuisances
As wind power becomes increasingly prevalent in the U.S., the issue of whether a
plaintiff can bring a successful private nuisance claim against a wind turbine operator still
remains.86 Opponents of wind developments have filed nuisance suits due to various
concerns: the noise created; the flicker or strobe effect created when light from the rising
or setting sun hits the turbine blades; the danger posed by thrown blades, ice, or
collapsing towers; the unsightly or aesthetically displeasing nature of wind turbines; and
the reduction in property values near a wind project.87 The Restatement (Second) of
Torts defines a private nuisance as “a nontrespassory invasion of another's interest in the
private use and enjoyment of land” and requires that the invasion be intentional and
unreasonable.88 The Restatement's rules instruct courts to weigh the harm and the utility
of the activity; a private nuisance occurs if, on balance, the harm caused by the activity
exceeds its benefit. Obstruction of a wind collector's access to wind could therefore be
considered a nuisance under Restatement principles if, on balance, the harm caused by
the obstruction (say, rendering the wind turbine defunct) is greater than benefits caused
by the activity (say, erecting a tall structure that would disrupt laminar airflow
downwind).89
Stephen Harland Butler suggest that the most likely successful avenues of nuisance
Id. (“In general, the maximum credit is $4,000 for eligible property placed in service after
October 3, 2008, and before January 1, 2009. The American Recovery and Reinvestment Act of
2009 removed the $4,000 maximum credit limit for small wind turbines.”).
86
Kristina Culley, Comment, Has Texas Nuisance Law Been Blown Away by the Demand for
Wind Power?, 61 Baylor L. Rev. 943 (2009).
87
Butler, supra note 24.
88
Sara Bronin, Solar Rights, 89 B.U. L. Rev 1217 (2009).
89
See id.
85
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suits against a wind farm lie in the noise, vibrations, and negative aesthetic qualities
(including any “strobe” or “flicker effect” on sunlight) relating to the wind project.90
While not drawing a bright-line rule, courts have attempted to approach noise and
vibration nuisance cases based on the Restatement’s twin requirements of a substantial
and unreasonable interference91 and have been hesitant to accept aesthetics as grounds for
nuisances.92 Furthermore, no American decision has been cited in which it has been held
that a landowner has a legal right to the free flow of light and air across the adjoining
land of his neighbor.93
As expected, there is not a plethora of case law for wind projects, and cases on
small-scale wind are even harder to find. There are two cases, however, where a court
has considered a small wind generator’s nuisance potential.94 In Rose v. Chaikin95, the
turbine at issue was quite loud, served only to “conserve energy and save on electric
bills” for the defendants and therefore had little broader social utility, and was located in
a residential area immediately adjacent to the plaintiff’s property.96 Rose is almost thirty
years old and today’s turbines are much quieter and could perhaps escape the precedent
by expert testimony on noise levels. In Rassier v. Houim,97 the North Dakota Supreme
upheld the dismissal of a nuisance suit against a wind power development.98 In this case
the plaintiff, Janet Rassier, moved into the adjacent lot after the turbine had been
90
Butler, supra note 24.
91
Id.
Id.
93
See id.
94
See id.
95
See also Rose v. Chaikin, 453 A.2d 1378 (N.J. Super. Ct. Ch. Div. 1982).
96
Butler, supra note 24.
97
See also Rassier v Houim, 488 N.W.2d 635 (N.D. 1992).
98
Butler, supra note 24.
92
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constructed.99 The court acknowledged the common law doctrine of “coming to the
nuisance,” where everyone who comes to a nuisance has a heavy burden to establish
liability.100 Ultimately though, Rassier only provides a thin reed of support for advocates
of wind energy.101
Plaintiffs may also analogize the noise from wind turbines on neighboring property
to noise nuisances in other fields. In Estancias Dallas Corporation, v Schultz,102 the
plaintiffs’ home faced the backside of a 155-unit apartment complex, serviced by a single
large air conditioning unit facing the plaintiffs’ property. Testimony described the noise
from the air conditioning similar to a jet engine or helicopter.103 The court of appeals
affirmed the jury decision that the noise from the air conditioning unit constituted a
nuisance.104 Several years later, a Missouri court found that the operation of only six
small air conditioning units seven feet away from the plaintiff’s residence constituted a
nuisance and enjoined the defendants from operating the units between 10PM and
7AM.105 Butler suggests that noise from a wind turbine would have to foreclose a normal
lifestyle to be actionable as a nuisance.106
While the above cases may be useful in specialized small wind system scenarios,
value can be found in reviewing two noteworthy cases dealing with utility-scale wind
projects. In Burch v. NedPower,107 the defendant was planning on developing a huge
99
Rassier, 488 N.W.2d 635.
Butler, supra note 24.
101
Id.
102
See Estancias Dallas Corporation, v Schultz, 500 S.W.2d. 217 (Tex. Civ.App. 1973).
103
Id.
104
Culley, supra note 86.
105
Massey v Long, 608 S.W.2d. 547 (Mo. Ct. App. 1980).
106
Culley, supra note 86.
107
Burch v. NedPower Mount Storm, LLC, 647 S.E.2d. 879 (W. Va. 2007).
100
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wind farm on a site fourteen miles long and half mile wide, with over 200 turbines.108
Ultimately, the Burch court not only held that the plaintiffs’ claims for nuisance due to
noise, unsightliness, and reduced neighboring property value should not have been
dismissed at the pleading stage, but that an injunction and not damage liability could have
been the proper form of relief.109 The Burch court appears to have set a much lower bar
for nuisance suits against wind farms than prior nuisance law would have allowed.110 A
nuisance suit reached a different outcome in Rankin v FPL Energy111 in 2008, in which a
state court of appeals upheld a partial motion for summary judgment and a jury verdict in
favor of a large wind development in Texas.112 The court held merely characterizing the
wind farm as abnormal and out of place in its surroundings allows a nuisance claim based
on an emotional reaction to the sight of FPL's wind turbines.113 In future nuisance
claims, courts should be careful to weigh all relevant information in their calculation of
an alleged nuisance’s unreasonableness.114 Nuisance cases have always involved the
delicate balance of two property rights: the right of the defendant to use her land as she
pleases, and the right of the plaintiff to be free on her land.115 If this country is to make a
successful transition to an energy portfolio where a significant portion of it electricity
comes from renewable sources, areas with wind energy potential should be encouraging
development rather than threatening to shut down enormous investments because of
108
Butler, supra note 24 at 1357.
Id.
110
Id.
111
Rankin v FPL Energy, LLC, 266 S.W.3d 506 (Tex. App. 2008).
112
Butler, supra note 24.
113
Rankin, 26 S.W.3d. at 512.
114
Butler, supra note 24 at 1371.
115
Id. at 1375.
109
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distant noise an aesthetic concerns.116
j. Conclusion
Wind is a viable and necessary part of our climate change strategy and the
technology is evolved and available. Courts must be careful to balance the harm of
alleged nuisances against its societal benefits before acting rashly to enjoin or otherwise
impede the development of a wind project that might have substantial social benefits.117
Congress and the White House must continue providing necessary incentives like the ITC
to maintain the aggressive pace of the wind energy, without ignoring small wind users.
116
Id.
117
Id. at 1371.
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