In Print: Volume 88: Number 3
Sucking the Air Out of Wind Energy: Nuisance Litigation and its Effect on Wind Energy Development
By Ryan Kusmin
88 Wash. U. L. Rev. 707 (2011)
(PDF)
Global climate change is a major threat facing our country and the world. The consequences of climate change are likely to be significant and far reaching, including increasing droughts, sea-level rises and flooding in coastal areas, potentially adverse effects on agriculture, and negative effects to human health. Further, there is a general consensus in the scientific community that climate change is caused by human activities, specifically emissions of greenhouse gases from the burning of fossil fuels. Due to the potential consequences of climate change, the international community has been trying and continues to try to reduce anthropogenic greenhouse gas emissions. In the United States, members of Congress continue to seek legislation that would address climate change by creating a cap-and-trade system, capping greenhouse gas emissions at a gradually reducing level and creating a market for the sale and purchase of emission credits. The President has made reducing greenhouse gas emissions a priority as well, ordering the federal government to do so.
Another priority of the President is to reduce the United States’ dependence on foreign sources of energy and, in the wake of the BP oil spill in the Gulf of Mexico, fossil fuels generally. He is not alone; national leaders of both parties since the 1970s have expressed a desire to end the United States’ “addiction” to oil and to make the country energy independent. The United States imports roughly sixty percent of its oil, and this is believed to create significant problems, including “adding to the trade deficit,” “national security threats,” and “wild price swings” in energy. The spilling of almost five million gallons of oil into the Gulf of Mexico and the as-of-yet untold environmental destruction from the BP oil spill illustrate that domestic fossil fuel production carries with it the potential for problems as well.
Wind energy is a clean, alternative source of energy that does not create greenhouse gas pollutants and can be produced domestically. While wind energy accounts for roughly only one percent of the energy produced in the United States, the potential for wind energy is vast. “[Wind] [r]esources in the contiguous United States, specifically in the central plain states, could accommodate as much as 16 times total current demand for electricity in the United States.” By obtaining more energy from wind, the United States could significantly reduce greenhouse gas emissions and slow the effects of climate change. In addition, increased wind energy could reduce the United States’ reliance on foreign energy and fossil fuels. However, litigation aimed at enjoining the construction of wind energy facilities slows and increases the cost of potential wind energy development. Often, this litigation is based on the common-law doctrine of nuisance and reflects a “not in my backyard” attitude. This Note addresses the issue of nuisance claims against wind energy development and proposes a way to reduce litigation and thus speed the development of wind energy, fulfilling the twin goals of reducing greenhouse gas emissions and dependence on foreign oil.
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