Legal Bases for Opposing Wind Farms

Wind energy is the fastest growing source of energy in the United States. In 2006 the country's wind power generating capacity increased by 27 percent. In 2007 the total wind power generating capacity shot up by 45 percent. According to the American Wind Energy Association, by the end of 2008 the country will have enough wind-generated electricity to provide electricity to over seven million homes. Although the 2008-09 recession brought this development to a near halt, several incentives for renewable energy have been included in the American Recovery and Reinvestment Act of 2009, and these provisions will almost certainly result in a renewed increase in utility-scale wind plants once the recession recedes.

The environmental community is divided on the desirability of wind plants. From the positive standpoint, such facilities produce no climate-changing gases and require virtually no water to operate. The latter is a special plus in areas such as the Midwest and other regions where water is usually in quite short supply. But no source of energy is completely free of adverse environmental impacts, and the sharp increase in the number of wind plants has been accompanied by a corresponding growth in the level of opposition, which is not limited to environmental organizations but often includes neighboring landowners as well. This opposition arises almost entirely because of the location of wind plants. They are constructed in areas with good wind resources, i.e., a wind speed averaging over 13 m.p.h. and within the necessary range of wind speeds approximately 40 percent of the time. Winds of this type are found primarily in prairies and grasslands, such as the plains of North Dakota, Kansas and the Texas panhandle, which were previously free of a network of roads or other linear features; ridge lines in or near scenic recreational areas, such as central and northern Maine; and migratory flyways or other bird-rich areas along the coastal plains or offshore areas such as Horseshoe Shoals off Nantucket.

Legal opposition to wind farms has primarily taken three basic forms. The first and most obvious is involvement in administrative hearings in states or counties that have permitting requirements. However, as the handful of reported cases involving regulatory hearings for wind farm permits make clear, in this as in virtually all similar situations, adverse rulings by a regulatory agency are difficult to overturn on appeal.
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