Avoiding the Brewing Battle Between the Military and Windfarms
Open Access DepositedThe current wind energy boom, while championed by the Department of Defense (“DoD”), President Biden and energy developers alike, is sometimes at odds with military operations. A wind development with soaring modern turbines hundreds of feet high may be close enough to a military flightpath or radar system to cause radar interference or put pilots at risk of accident. The DoD often seeks to engage in discussion to “mitigate” these concerns with a developer and allow the windfarm to continue in an altered form. Often this succeeds, occasionally it fails. While this issue has sporadically appeared in domestic headlines over the past fifteen years, the legal regime put in place since 2011, built around the DoD “Clearinghouse” to facilitate mitigation discussions, has proven inadequate. This is because no arm of the federal government, individually or collectively, has legal authority to halt a project in the extraordinary event mitigation discussions collapse. Thus, theoretically, a project can press forward in the face of strident objection from the DoD and Federal Aviation Administration (“FAA”) over the project’s potential impact for military operations and hazard to aviation. This has happened on two occasions, and while both projects failed to reach completion, in both instances the federal government lacked authority to stop them. As the number of windfarm developments soars, a revised legal regime is crucial to ensure wind energy can continue to grow while affirmatively protecting military installations and flightpaths. This thesis will conclude there are three options for revising this regime. The first empowers state governments to control windfarm siting through legislation of their choice (as has been done in three states). The second and third options empower the federal government through decisive authority to stop a project or rebuttable presumptions regarding the hazard presented by an encroaching windfarm. Empowering the federal government in this arena may result in litigation concerning whether federal “veto” of such a project constitutes a regulatory taking under the U.S. Constitution. This thesis explores that possibility in detail, concluding that while the outcome of prospective litigation is unclear the real “reward” to protect military operations is well worth the speculative “risk” of paying claimants through regulatory taking claims.
- All rights reserved
Notice to Authors
If you are the author of this work and you have any questions about the information on this page, please use the Contact form to get in touch with us.