The Way the Winds Are Blowing These Days: the Rapid Growth of Wind Energy and Legal Hurdles of North Carolina's General Statutes

• Publication year: 2006

Steven G. Bell⁰

With interest in renewable energy sources gaining momentum, it is only natural that controversy will arise surrounding the proliferation of wind energy. While this conflict has already manifested itself in the context of federal law, in North Carolina, a state with favorable conditions for wind energy development, the fate of the budding technology remains uncertain amidst statutes which did not contemplate the possibility of widespread wind energy harvesting. North Carolina's most favorable sites for wind energy development are protected by the Mountain Ridge Protection Act and the Coastal Area Management Act. This Comment explores both Acts to determine if wind energy development in the Tar Heel State will be defeated before it can even begin.

I. Introduction—The Winds of Change

In recent years, amid higher prices for fossil fuels, many individuals and businesses have begun to explore the possibility of using renewable energy sources.¹ Although the options for generating renewable energy are numerous, wind energy has come to the forefront as one of the most viable.² As interest in wind power grows, litigation over the siting and erecting of wind turbines is inevitable. Controversies in other states have demonstrated that public opinion, coupled with uncertainty regarding the law, can have the effect of stalling or crippling a proposed wind farm.³

Despite ambiguity in North Carolina law, the development of wind energy is becoming a reality in the State, with one large-scale wind farm planned for Ashe County.⁴ However, the fate of this project and others remains uncertain. With suitable sites for wind farms along the coast and atop high mountain ridges, North Carolina's wind energy potential seems to be curtailed by well-meaning statutes that make up the Mountain Ridge Protection Act⁵ and the Coastal Area Management Act.⁶ These Acts were promulgated to address other issues of development in environmentally sensitive areas.⁷ Despite the threat posed to wind energy projects by these two Acts, interest in wind energy continues to grow, and North Carolina is poised to join the ranks of other states⁸ and nations⁹ that draw portions of their energy supply from this budding technology.

This Comment will focus on North Carolina law's possible preclusion of wind energy development in the most desirable sites for this new technology. Although the Mountain Ridge Protection Act and the Coastal Area Management Act are long-standing and well-established, both remain untested in court in the context of wind turbines. This creates an aura of uncertainty that is ripe for litigation. This Comment will show why North Carolina law, while murky in its current state, should not prevent the development of wind energy and should leave the technology a viable option for North Carolina, both climatologically and legally.

First, this Comment will provide a brief summary of North Carolina's attributes and characteristics that make it suitable for wind energy harvesting. This analysis will emphasize why wind energy is being considered as an option and where the best sites are located. Second, this Comment will focus on the mountainous regions of western North Carolina and the potentially hindering Mountain Ridge Protection Act. The precise wording of the Act is examined, followed by a review of the history surrounding its enactment. The discussion begins by examining Watauga County's new wind energy ordinance and possible guidance from the North Carolina Attorney General. This examination will demonstrate that despite the vague prospects of wind energy development under the Mountain Ridge Protection Act, wind turbines are most likely exempt from its regulations in any context. Third, this Comment will examine the Coastal Area Management Act to forecast the legal hurdles an intracoastal North Carolina wind energy project may face. Here, the wording of the Act is scrutinized and analyzed as it works in tandem with the Public Utilities Act.¹⁰ Lastly, the Coastal Area Management Act is examined in context with its corresponding administrative code to show that it, like the Mountain Ridge Protection Act, will not outright preclude a wind energy project. By following these steps, this Comment will show that the emerging technology of wind energy can continue to develop against the background of current North Carolina law.

II. The Tar Heel State

North Carolina is a diverse state in climate as well as in topography.¹¹ From the highest point in eastern North America¹² to the sandy beaches and brackish estuaries of the state's barrier islands, North Carolina has a wide range of wildlife habitats and weather patterns.¹³ This diversity in topography and climate is accompanied by a corresponding diversity in wind intensity.¹⁴ North Carolina is not an area subject to high winds overall; however, the average wind speeds can be quite strong in some areas.¹⁵ The highest average wind speeds in North Carolina are found along the high mountain ridges on the western edge of the State and along the Outer Banks and adjacent waters in the east, with the inland areas of the Coastal Plain and the Piedmont receiving calm winds in comparison.¹⁶ Because of this difference in climate, proponents of wind energy have set their sights on the two extreme edges of North Carolina: the tall mountain ridges and the remote barrier islands, including their adjacent waters.¹⁷

North Carolina's relatively mild climate is another factor that makes the State attractive to wind energy proponents. With an average monthly temperature in January of forty-one degrees Fahrenheit and an average of seventy-seven degrees Fahrenheit in July,¹⁸ wind energy projects in North Carolina need not have nearly as great of a concern over the potentially harmful effect of ice shedding,¹⁹ a worry that is raised over some wind energy projects in New England and Northern Europe.²⁰ Despite concerns, even in much colder climates, the hazard of ice shedding has been found to be minimal.²¹

In addition to being a boon to wind energy projects, the pleasant climate that North Carolina enjoys has likely factored into the Tar Heel State's rapid population growth in recent decades. North Carolina has seen population growth statewide of 21.4% compared to the national average of 13.2%.²² In addition, North Carolina has experienced population growth across the State, with almost every county seeing an increase in population between 1990 and 2000.²³ Along with population growth, North Carolina has experienced some growing pains; a need for more housing, more schools, more roads, and increased energy supply.²⁴

The need for increased energy supply coupled with continued population growth has spurred North Carolina electricity providers to look to several options to meet the rising demand in the coming years.²⁵ Nuclear energy has fallen out of favor since the Three Mile Island²⁶ debacle in 1979; however, it is being pursued again as an option for North Carolina to meet its growing energy needs in the years ahead.²⁷ Currently, nuclear power provides a sizeable portion of North Carolina's energy supply from both of the major providers,²⁸ Duke Energy and Progress Energy.²⁹ North Carolina also has fourteen coal-fired power plants, a method of energy production that is generally disfavored by environmentalists due to its high emission levels.³⁰ in addition to nuclear and coal-fired energy-generating facilities, North Carolina also receives a portion of its energy from hydroelectric facilities.³¹ As of the publication of this Comment, wind energy has not been utilized beyond small-scale private use, despite its potential in some areas.³²

Like most expanding technology, wind energy has both supporters and detractors. Proponents of wind farms often emphasize the environmental benefits, noting that wind is a renewable resource that does not create the noxious emissions associated with fossil fuels, and wind energy is cost efficient, quiet, and provides a boost to the local economy.³³ Most often, the praise for wind energy focuses on its potential to be widely implemented as a sustainable energy source without the pollution issues that plague other forms of energy generation, such as coal-fired plants.³⁴

Like the proponents of wind energy, opponents of wind farms also emphasize the environmental impact of wind power.³⁵ However, instead of concluding that the benefits of sustainable energy outweigh the costs, they often view the impact on the environment as one of the main reasons to oppose this technology.³⁶ Those opposing the development of wind farms have environmental concerns over the possible impact on night-flying migratory birds, as well as marine mammals and fish.³⁷ in recent public opinion surveys taken of residents of North Carolina's mountains and coastal communities, respondents who opposed the development of wind farms overwhelmingly did so because of concerns about environmental impacts and aesthetics.³⁸ The survey results suggest that offshore wind farms elicit more concern over environmental impacts than their on-shore counterparts, particularly when they would be located in the brackish sounds that adorn the coast of the Old North State.³⁹ According to the survey results, when it comes to wind farms located onshore or atop mountain ridges, North Carolinians' primary concern is aesthetics.⁴⁰ Even opponents of wind energy who concede its efficacy as a renewable energy source still object on the basis of aesthetics.⁴¹ Wind farms are considered by many opponents as a blight on the landscape, often compared to cellular telephone towers.⁴² in contrast, many proponents of wind farms argue that wind farms are aesthetically pleasing, even equating them to animated sculptures.⁴³

In North Carolina, both the coast and the mountains are recognized as areas worthy of protection for their ecological significance and their scenic beauty.⁴⁴ This is evident by the concentration of state and federal parks...