Tuesday, November 27, 2012
Troy Rule (Missouri) has posted Wind Rights under Property Law: Answers Still Blowing in the Wind (Property & Probate) on SSRN. Here's the abstract:
rising economic value of wind resources in recent years has introduced
some perplexing new property law questions. For example, what exactly
are “wind rights”, and are they legally cognizable real property
interests? Should landowners be liable if wind turbines on their
parcels disrupt the energy productivity of wind flowing onto downwind
property? Can landowners legally sever a “wind estate” from their land
and transfer it separately from the surface rights, like a mineral
estate? And should a wind energy restriction that effectively
appropriates private airspace for a specific government entity’s own use
trigger a compensable regulatory taking?
Although a handful of state legislatures have recently enacted laws seeking to clarify the nature and scope of wind rights, significant uncertainty surrounding these rights remains. Such uncertainty can deter investment in wind farms and impede wind energy development. In an era of shrinking state budgets and dwindling government subsidies for alternative energy, laws that provide greater certainty regarding wind rights are a low-cost way for states to promote wind energy development within their jurisdictions. This short magazine article examines a handful of unresolved property law issues involving wind energy and briefly describes some potential policy strategies for addressing these issues.