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A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights

40 Pages Posted: 2 Sep 2009  

Troy A. Rule

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: September 1, 2009

Abstract

The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.

Keywords: wind, wind energy, wind turbine, calabresi, melamed, cathedral model, rule four

Suggested Citation

Rule, Troy A., A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights (September 1, 2009). San Diego Law Review, Vol. 46, p. 207, 2009; University of Missouri School of Law Legal Studies Research Paper No. 2009-23. Available at SSRN: https://ssrn.com/abstract=1466066

Troy A. Rule (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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