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Dynamic Federalism and Wind Farm Siting Open Access

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An "all-of-the-above" energy policy, driven by concerns about climate change and energy security, has led to the emergence of wind power as an energy resource of choice. Wind energy conversion systems emit no greenhouse gases and discharge no water. Because wind is a free "fuel," wind farms are considered reliable low-cost hedges against fluctuating fossil fuel prices.Wind energy systems do have drawbacks, however. Among these, the mechanical and electromagnetic properties of wind turbines pose significant hazards and complications to U.S. Department of Defense (DoD) military installations and activities. These encroachment concerns, many of which are common to civil aviation, include interference with air traffic control and other radar systems. One ramification of these hazards and complications is the very real potential for conflict between the public's interest in national security and its interest in developing renewable energy sources to protect the environment and achieve energy independence.Because utility siting decisions are made at the state and local level, the federal government's ability to guard against these hazards to civil and military aviation and other military activities is limited to advisory determinations issued by the Federal Aviation Administration.In 2013, North Carolina enacted a statute requiring early and frequent consultation with DoD officials as a prerequisite to applying for and issuing permits to construct wind farms. This statute potentially operates to effectively allow DoD, a federal agency with no independent federal authority to influence wind siting actions, to prevent the state from issuing a wind farm construction or expansion permit.This thesis will explore the recent North Carolina statute and explain how it could allow DoD to effectively prevent the state from issuing a wind farm construction permit. This thesis will also analyze whether it is advisable for a state to grant this type of "soft veto" to a federal government agency, and consider whether it is appropriate for DoD to exert this level of influence over the state permitting process. In the end this thesis argues that the North Carolina law can serve as a model for other states with installed or potential wind energy capacity and significant military presence.

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