Winds of Change: Drawing on Water Law Doctrines to Establish Wind Law

61 Pages Posted: 17 Nov 2013 Last revised: 26 Jun 2017

See all articles by Yael R. Lifshitz

Yael R. Lifshitz

Columbia University - Law School; New York University (NYU) - School of Law

Date Written: November 15, 2013


Wind presents a promising, clean resource for energy production, which is likely to become even more significant in years to come given the challenges of climate change and the ever-increasing need for new sources of energy. However, while wind energy has many ecological and economic advantages, harvesting the wind also presents some striking challenges with respect to property allocation and the use of natural resources. Specifically, the extraction of wind by one wind farm can reduce the wind available for others in the downwind direction. Despite the importance of wind resources, there is little judicial or legislative guidance on the governance of wind. This Note outlines potential structures for wind regimes, such that the existing wind resources will be optimally utilized. This is done by drawing on more mature regimes governing a similarly fluid and fugitive asset – water – which provides helpful guidance for crafting wind law.

This Note argues that, overall, an administrative permitting system that resembles the regulated riparian regime may be the best-suited system for governing our wind resources. In addition to the permitting system, wind-markets may be established to allow trading of ‘wind rights’ between users so that the most efficient siting will take place through the market system. This may be especially useful in areas where the use of wind is more competitive. Urban localities, which are becoming increasingly relevant because of the recent expansion of small-wind projects, provide an interesting example of such a competitive setting.

Keywords: renewable energy, wind, water law, environmental law, property law

Suggested Citation

Lifshitz, Yael R., Winds of Change: Drawing on Water Law Doctrines to Establish Wind Law (November 15, 2013). Forthcoming N.Y.U. Envtl. L.J. (2014). Available at SSRN:

Yael R. Lifshitz (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

New York University (NYU) - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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