Tuesday, February 9, 2010

"Animal, Vegetable, Mineral -- Wind? The Severed Wind Power Rights Conundrum:" New Law Journal Article by Prof. K.K. DuVivier

K.K. DuVivier, professor of energy and environmental law at the University of Denver Sturm College of Law, has written a ground-breaking article about wind power and how wind rights are categorized. An abstract of the article, "Animal, Vegetable Mineral -- Wind? The Severed Wind Power Rights Conundrum" that appears in Volume 49, Number 1 of the Washburn Law Journal (fall 2009), follows:
U.S. wind power capacity increased 50 percent in 2008, making wind one of the fastest growing energy sources. Wind has several advantages over conventional energy fuels: it is renewable, does not emit pollutants, and does not require scarce water resources to process the raw product or to generate electricity.

Yet wind power’s rapid growth is creating its own crisis. Thousands of landowners across the country have severed their “wind rights,” splitting wind ownership apart from surface ownership. However, wind power development requires extensive, and perpetual, surface disturbance. As surface owners are the parties most impacted, taking them out of the equation seriously complicates surface access and damage negotiations.

Furthermore, when landowners retain control over both the mineral and wind rights, those landowners can serve important roles as mediators in disputes between competing developer interests. Landowners who receive royalties from both mineral and wind development have an incentive to see both enterprises coexist. This incentive is eliminated when mineral and wind rights are severed and the owners of these separate estates seek only to maximize their own distinct interests.

Commentators have applied the mineral severance concept to the wind context to recognize the practice severing wind. But are these commentators asking the right question? Yes, wind probably can be severed. The more important issue is whether policy makers seeking to promote mineral development and to protect farmers and ranchers should allow it to be severed.

Only a handful of states have examined wind ownership issues, and few have chosen to prohibit wind severance completely. The only two courts that have yet addressed the issue of wind severance have done so obliquely. A 1997 California court allowed wind severance in a condemnation context by likening wind to oil; in a 2009 partition case, the federal district court in New Mexico likened wind to a different mineral— water.

How a wind right is categorized will have significant impacts on relationships between wind-rights owners and surface owners for centuries to come.
Prof. DuVivier’s article, the full text of which can be accessed by clicking here, explores the two cases on record relating to wind severance and the evolution of severed mineral rights. Her analysis illustrates that we should be exploring alternative models because the historical and policy rationales concomitant for mineral severance do not apply in the wind context. All those interested in the state of the art when it comes to wind power issues should carefully read Prof. DuVivier's piece.

In addition, those who attend the graduate program will have the opportunity to learn firsthand from Prof. DuVivier, one of the foremost experts on U.S. wind power issues.

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