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Constricting the Wind Commons

According to the U.S. Bureau of land management, wind power is the fastest growing energy technology in the United States. With this growth comes the desire to develop a legal framework for wind rights.

Today at PERC, Daniel Kaffine, with the Colorado School of Mines, explored the legal status of wind collection rights. Wind can be compared to other resources such as water and oil, but it is most often compared to mineral rights. Indeed, there is some legal precedent that argues that a mineral rights framework can be applied to wind rights. In Contra Costa Water District v. Vaquero Farms (1997), the California appellate court held that the right to harness wind for electricity constitutes a wind right that is severable from surface rights.

As Kaffine asks, “If the mineral rights framework is an appropriate analog for wind power, the question arises: should wind rights be severable from surface rights?” Some states such as Colorado think no. Other states such as Wyoming think yes. What do you think?

Comments

  1. Earnest E. Smith, who teaches energy law at UT-Austin, has examined this question in reference to oil and gas rights, water rights, and wildlife rights in Texas law. See a preview of his article at: http://www.utcle.org/eLibrary/preview.php?asset_file_id=23453

    I don’t know if the article has been published anywhere, but perhaps emailing the author would work.

  2. Smith’s article is on the appropriate analog for wind energy rights generally. On the specific question of severance, these two papers raise concerns:

    http://kaplalaw.com/NAW1010_WindRightsArticle.pdf
    http://www.sbaustinlaw.com/library-papers/Chavarria-The_Severance_of_Wind_Rights%20(Final).pdf

    Contracts conveying interests in wind royalties or offering long term development rights can accomplish most of the goals of a surface property owner without getting into the uncertainties surrounding complete severance of the wind development rights.