It is well established by this time that a landowner can grant an easement over his property to a third party who wishes to build wind turbines that will capture the wind and convert it into electrical power. It is still somewhat of an open question whether an adjacent landowner can still make use of his land for something that would block the flow of wind (e.g., planting a windbreak to impede soil erosion or building a grain elevator). One commentator has noted that some states have recognized a solar right that prevents a landowner from blocking sunlight needed to power solar panels on a neighbor’s land.
A recent lawsuit in California seeks to have wind rights of a different sort recognized. The Mountain Valley Airport in Tehachapi, California, has filed a lawsuit seeking to block construction of a wind power project that called for erecting up to 137 410-foot tall wind turbines on 7,100 acres. The owners of the airport are arguing that its users have established a “public easement” in the unique wind currents that occur above the proposed project site.
Wind by its very nature is not a resource that is confined to any single parcel of property regardless of how big. Should it be thought of more like free flowing water and treated similarly from a legal standpoint? The airport’s claim raises another possibility: should the wind be thought of as a resource owned collectively by all of us and held in public trust by state and federal governments? Such an approach would not mean that private landowners couldn’t capture wind resources as they pass over their individual parcels. But it might mean that government would have a role in resolving disputes like this one and ones that are increasingly likely to occur between adjacent landowners.