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West Virginia Law Review

Article Title

Fencing the Wind: Property Rights in Renewable Energy

Document Type

Article

Abstract

In the face of global warming, the rapid development of carbon-neutral energy resources is utterly imperative. However, even environmentally friendly energy production like wind power has real externalities. Those who live in the shadow of wind turbines and suffer the immediate effects of wind development can be disenfranchised by municipal and state-level siting processes. Meanwhile, absent or ad hoc governance of windstreams prevents the efficient economic use of renewable energy resources when upwind development can doom a nascent wind farm. As windstream development intensifies, each of these conflicts will only become more frequent and more severe.

This article proposes a novel property mechanism, classified-share wind unitization, as a unifying solution to the three distinct property rights conflicts facing wind development: (1) traditional private nuisance claims, (2) rivalrous economic use of the windstream commons, and (3) environmental justice issues raised by current siting regimes. In doing so, this article offers policymakers an immediate model for wind development legislation while articulating a flexible framework for discussing property conflicts surrounding distributed infrastructure development.

Part I of this article discusses the different property conflicts implicated by wind development and looks at the costs these conflicts create. Part II examines existing and proposed governance mechanisms that attempt to address these property rights. Finally, Part III examines unitization as a tool for governing windstreams, proposes a novel form of class-based unitization tailored to address the specific property rights claims implicated by wind development, and outlines a model framework for wind unitization laws.

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