Monday, May 17, 2010
Alan J. Alexander (JD Candidate, Michigan) has posted The Texas Wind Estate: An Argument for the Recognition of the Wind as a Natural Resource and a Severable Property Interest. The abstract:
As a renewable resource, the wasteful practices in the development of wind energy raise different concerns and come in different forms than waste in the oil and gas industry. Nonetheless, waste of the wind is no less harmful than the waste of oil if the underlying policy goal of the state is to maximize the use of its energy resources. To maximize the use of the state’s energy resources, the state needs the power to regulate the wind to mitigate wasteful practices, and landowners need a property interest that they can market or exploit and that the courts can recognize and protect. Yet, it is unclear if the state has full regulatory power over the wind, or if wind ownership is incident to land ownership. Thus, to address these issues will require the resolution of at least three legal questions, the answers to which are essential to the course of development of wind energy in the state of Texas.
The first question is whether the wind is considered a “natural resource” like oil or percolating water, such that the legislature can pass laws to regulate it under Article XVI, Section 59 of the Texas Constitution. The next question is whether the wind is subject to ownership in the state of Texas. The wind blowing over one’s land could be subject to ownership in Texas under common law in a manner analogous to the theory of percolating water, a theory of ferae naturae, a unified fee theory of ownership, or surface water law. The final question that must be answered is whether a landowner’s interest in the wind that flows over his land is severable from the surface estate. Despite the lack of legislative and judicial guidance on this question, wind leases in Texas are typically written as if wind rights are severable. Yet it is unknown if Texas courts will recognize the severability of a wind estate.
This Note argues that the Texas Legislature should pass laws clarifying that the wind is a natural resource, and that in order to promote “[t]he conservation and development” of the wind as a natural resource, the legislature should statutorily recognize wind rights that are a severable interest in land ownership. Part I offers a brief comparison of the early wasteful history of the oil and gas industry in the state of Texas with the early development of the Texas wind industry, and discusses the problem of waste of the wind. Part II addresses whether the wind is a natural resource, the legal theories that could support a property interest in the wind, and the debate as to whether those wind rights should be a severable interest. Part III lays out the argument in support of the Texas Legislature enacting laws to clarify that the wind is a “natural resource” under the Texas Constitution, that there is a recognized property interest in the wind, and that the interest is severable. The Note concludes by summarizing the necessity of clarifying wind energy law, and the benefits of doing so for the development of wind energy in Texas.