Is “First in Time, First in Right” the best way to allocate rights to wind energy?

Michael Giberson

At EnergyPulse, Ron Rebenitsch discusses the unsettled foundation of the wind power industry: uncertain rights to use the energy present in the wind. Currently the industry seems to work on a “capture what you can” model, but the approach has its problems and the problems are likely to become more pronounced as the industry grows.

Because a wind turbine extracts energy from the wind, the wind downwind of a turbine will be less powerful and more turbulent than the wind entering the turbine. As a rule of thumb, expect that these downwind effects continue for a distance up to 10 times the size of the turbine’s rotor diameter. As Rebenitsch mentions, a 1.5 MW turbine might have a 77 meter rotor diameter, so the downwind effects of the turbine could extend 770 meters (or just over 2500 feet). If a wind power project’s turbine is closer than 2500 feet to the landowner’s property boundary, it may be subject to interference from development of wind power (or other construction) on the neighboring property.

As a practical matter, I understand that financiers typically seek to enforce a buffer zone around a project before participating in funding. Project developers, too, are obviously interested in the long term value of an installation. Still, the industry would benefit from additional clarity.

The article is only one of two parts that Rebenitsch intends to publish. This first part explains the problem and cites two possible legal models: the “First in Time, First in Right” approach sometimes used for water rights, and the unitization model frequently used for oil and gas. In the second part he intends to address the pros and cons associated with differing legal models.

I’m looking forward to it.

UPDATE: A link to part two of Rebenitsch’s essay on rights to capture wind energy.