Who Owns the Texas Sky? An Analysis of Wind Rights in Texas
| Date | 01 May 2015 |
| Author |
45 ELR 10426 ENVIRONMENTAL LAW REPORTER 5-2015
Who Owns the Texas Sky?
An Analysis of Wind Rights in Texas
by omas Boyd
omas Boyd is a Harvard Law School student, a proud Texan, and an interested
observer of emerging areas of law and unsettled legal issues.
I. Introduction
Texas has again become the national leader in an emerg-
ing area of energy production. As it did with oil in t he
1940s, Texas in 2006 surpassed California and became the
nation’s leading producer of wind power, with an installed
generating capacity of 2,736 megawatts (MW).1 State
wind power production increased nearly vefold in the
eight years since. In the rst quarter of 2014, Texas had an
installed wind power c apacity of 12,354 MW, more than
twice as much as any other state and over one-fth of the
total U.S. installed capacity.2
For both geographic and political reasons, this increase
in wind power production is likely to continue for the fore-
seeable future. Geographically, Texas has the second-high-
est wind energy production potential in the United States,
just behind North Dakota, being hypothetica lly able to
support an installed capacity of 136,100 MW in the 18%
of the state deemed windy land area,3 though other studies,
perhaps reecting improvements in generating technology,
estimate potential capacity much higher tha n that.4 Texas
has the space and wind strength to produce much more
wind electricity than is generated at present.
Politically, Texas has instituted several programs to
incentivize continued investment in wind power produc-
tion. e most signicant programs include the Com-
1. U.S. D’ E (DOE), WIND E: U.S. I W
C (2014), http://apps2.eere.energy.gov/wind/windexchange/wind_
installed_capacity.asp.
2. Id.
3. Dennis L. Elliot et al., An Assessment of the Available Windy Land Area and
, app. B, tbl. B.1
(1991), available at http://www.physics.ohio-state.edu/~wilkins/energy/
Resources/Lectures/5252760.PDF.xpdf.
4. T C P. A (C), W
S G, W E, ch. 11, ex. 11-9, http://www.win-
dow.state.tx.us/specialrpt/energy/renewable/wind.php (last visited Sept. 5,
2014).
petitive Renewable Energy Zones transmission project,5
which empowered t he Public Utility Commission (PUC)
to allocate nearly $5 billion to build 2,400 miles of trans-
mission lines to renewable energy generation sites,6 making
the electricity produced available to consumers and prot-
able for project developers. e st ate renewable portfolio
standard (RPS) also publicly committed to increasing elec-
tricity production from renewable sources by setting pro-
duction targets for 2015 and 2025, both of which Texas has
already surpassed.7
State courts have ruled that ma ny of the nuisance
complaints that residents have raised about nearby wind
turbines, such as unsightliness and incidental eects on
property value, constitute mere emotional injury and do
not require compensation, removing an obstacle to f uture
project development.8 Texas also has no state siting process
for wind turbines, leaving it as a private matter between
developer and landowner and minimizing regulatory hur-
dles.9 Given the political and nancial support for wind
power, and the enormous potential for wind power genera-
tion in Texas, it seems likely that t he wind industr y will
continue to grow in size and importance.
e grow th of an industry t hat pr ior to 1999 did not
really exist in Texas into a n industry representin g $23
billion in investments, $38 million in annua l lease pay-
ments to landowner s, and 8.3% of st ate electricity gen-
eration just 15 years later creates new leg al issue s, as what
was formerly a cooling breez e is now a valuable economic
commodity.10 Just as Texas’ oil resources allowed it to
5. T. U. C. A. §39.904(g) (2007).
6. T S E C. O (E O), R E-
R: S C ch. 9, Strategies for Deliver-
ing Renewable Energy to Markets, http://seco.cpa.state.tx.us/publications/
renewenergy/summaryandconclusions.php (last visited Sept. 5, 2014).
7. T. U. C A. §39.904 (a) (2007).
2008), citing Dallas Land & Loan Co. v. Garrett, 276 S.W. 471, 474 (Tex.
Civ. App. 1925); Jeansonne v. T-Mobile W. Corp., No. 01-13-00069-CV,
2014 WL 4374118, at *2 (Tex. App. Sept. 4, 2014). In Rankin, the jury also
found that noise from the turbines did not constitute a nuisance.
9. C, supra note 4, at ch. 11.
10. A W E A’, S W E S: T,
http://www.awea.org/Resources/state.aspx?ItemNumber=5183 (last visited
Sept. 5, 2014).
Author’s Note: e author would like to thank the Harvard Law
write this piece and Prof. Bruce Mann for his help in developing the
idea and reviewing early drafts of the Article. Without their support
it would not have been possible.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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