TEXAS WIND COWBOYS FACE TEXAS JUSTICE

The notorious range war between two giant century-and-a-half-old Texas ranching institutions, the King and Kenedy ranches (see RANGE WAR OVER TEXAS WIND HEATS UP), has called attention to the dearth of statutory regulation and near absence of legal precedent governing wind energy development. As Texas takes the lead among U.S. states in wind energy production, it begins to remind some of the wide-open oil boom days at the beginning of the last century.

In 2007, Texas became the U.S. leader in wind energy production and it is not looking back. (click to enlarge)

Ernest Smith, University of Texas wind law professor: "With wind law and the wind industry, what's happening legally is about the same place the oil industry was 100 years ago…It's virtually unregulated. People realize there's great value to it, but there's no precedents in case law and very little statutory help."

A recent proposal in the Texas legislature for a wind project permitting process did not get out of the House Regulated Industries Committee.

Like the oil boom, this wind energy boom is driven by big money seeking access to energy and local landowners anxious to get royalties from the development. During the Spindletop boom, men leased land immediately adjacent to where a big strike had been drilled and tried to get into the same “pool” of oil. The “right of capture” from old English hunting law prevailed until regulation established some order. Nobody is likely to build turbines so close together one will poach another’s wind (though it is theoretically possible).

During oil booms, drillers went down after oil and never gave a damn what they did to the environment around them. Windfarm builders, anxious to sustain the industry’s reputation as “clean” energy, typically do voluntary environmental impact studies, as Babcock & Brown did on the Kenedy Ranch wind energy project. In fact, the American Wind Energy Association (AWEA) has set up the American Wind Wildlife Institute, a multidisciplinary government agency and non-governmental organization partnership, to establish best practices for wind project siting.

Babcock & Brown and AWEA are aware of the U.S. Fish and Wildlife Service’s point that "…the area of proposed development may be an important landfall area in the migratory route for many birds, which ... include threatened and endangered species." It is because Babcock & Brown's studies indicate the latest model turbines will not cause harm that they are proceeding.

So there are significant divergences from the free-wheeling oil boom era. In this country, even in Texas, the ultimate arbiter is the law. Although more regulation may slow the development of New Energy infrastructure, the rule of law – which distinguishes society from a range war – requires it.

Perhaps because all Americans are equal under the law, it turns out that the wind energy industry has something in common with the coal and nuclear industries. Ward Marshall, Babcock & Brown project manager: "The first thing opponents will grab on to is an environmental issue: With coal plants, they hang their hat on air quality; with nuclear plants, they worry about a Chernobyl meltdown; and with wind farms, it's a bird problem. That's our albatross."

On the other hand, it is a stretch to compare even the worst a windfarm could do with the poisonous spew from a coal plant, much less a nuclear plant meltdown. And that’s something to think about.

For better or worse, wind power loosely regulated; UT professor to teach wind law class this semester
Asher Price, January 14, 2008 (Austin American-Statesman)

WHO
Ernest Smith, law professor, University of Texas; North Texas Wind Resistance Alliance; Jim Blackburn, lawyer, Coastal Habitat Alliance (CHA); Babcock & Brown; Texas grid operator Electric Reliability Council of Texas (ERCOT)

ERCOT is the final authority in most of the state. (click to enlarge)

WHAT
There are two general areas of contention over wind in which the law could play a significant role in settling hostilities: (1) Windfarms’ impact on the environment, particularly regarding the safety of avian, bat and wild animal habitat; and, (2) windfarms’ impact on neighbors, particularly regarding aesthetics, noise and interference with neighboring windfarms.

WHEN
- The King and Kenedy Ranches date back to the middle of the 1800s.
- Spindletop, the first giant Texas oilfield, was discovered in 1901.

The Gulf coast region where the Kings and the Kenedys are feuding is an important avian migratory flyway... (click to enlarge)

WHERE
- The King and Kenedy Ranches are on Texas Gulf coast.
- The North Texas Wind Resistance Alliance is fighting a wind project in Abilene and two in North Texas.
- McCamey, in West Texas, calls itself the wind capital of the state. Many localities in West Texas and the Panhandle are reaping new economic fortunes as wind energy developers move in and offer leases for turbine sights and transmission rights of way.

...Yet the Texas General Land Office urges investors to consider the region's wind energy potential. (click to enlarge)

WHY
- The Kenedy Ranch is ostensibly fighting the CHA over the safety of Kenedy Ranch turbines for migrating birds. Babcock & Brown, project installers, claim the King Ranch is funding CHA because, as an oil and gas power, it opposes Kenedy Ranch’s 600 turbine farm.
- The North Texas Wind Resistance Alliance pending cases claim wind farms are loud, ugly and/or depress property values.
on the ground
- Three cases filed in the past couple of years in Texas — one in Abilene and two in North Texas, where landowners organized the North Texas Wind Resistance Alliance — have tried unsuccessfully to stop wind farms on the grounds that they are loud or ugly or depress property values.
- The primary regulation of wind is presently ERCOT’s determination to allow a windfarm to connect to the grid.
- In July, the Texas PUC is accelerating the development of new transmission. (See NEW TRANSMISSION FOR NEW ENERGY APPROVED IN TEXAS)
- The Texas General Land Office is promoting 26,000 acres for windfarm development.

click to enlarge

QUOTES
- Blackburn, CHA: "[Wind law is] totally immature, and the problem is that major ecological impacts could occur…"
- Steven Thompson, Houston lawyer: "Texas has an open door; there are no regulations that apply to wind energy companies…"
- Mike Sloan, Virtus Energy, Austin: "If you put something up in the air, it's going to impact air flow, whether it's a mountain, or a building, or a tree or a wind turbine…It's like sailboats that are racing: One of the boats will catch the wind that would otherwise go to the other boat's sail."