By Susan Huntsman
Nov. 11, 2010
Wind energy is touted as a potential solution to our ever-expanding energy needs, and each year new crops of turbines seem to sprout in our fields. Yet state governments are only now coming to grips with how the law will view these projects.
Will wind be the next oil and gas, with rights bought and sold separately from the land? How much consideration should be given to adjoining lands, airspace or the environment? What happens when a wind farm closes?
The Legislature has begun answering some of these basic questions, setting the groundwork for how wind energy will develop in Oklahoma.
Before this year, there was little state legislation addressing wind turbines. This does not mean that wind farms have been completely unregulated - any new project must comply with construction permitting requirements or local land-use rules.
Oklahoma's installed wind power capacity has grown in this environment - from zero megawatts in 2002 to 1,031 megawatts by the end of last year, according to the U.S. Department of Energy.
In three days during June, three different bills affecting wind energy were signed into law.
First, the Legislature passed the Oklahoma Wind Energy Development Act, setting rules for decommissioning of wind energy facilities. Under this law, wind farms are regulated by the Oklahoma Corporation Commission. These wind facilities must - by their 15th year of operation - provide evidence of financial security to the OCC to cover the estimated cost of decommissioning.
After a wind farm closes, the owner must remove all wind turbines, buildings and other facilities and if they do not, the OCC will make sure that the land is restored. The act also imposes reporting and record-keeping requirements to ensure accuracy of payments to landowners.
The very next day, the governor signed into law a provision that defines the nature of wind rights.
As far back as 1973, the Oklahoma Airspace Act declared that airspace was "real property" initially belonging to the surface but capable of being separately transferred. This new law, however, changes that act and declares that the right to wind or solar energy will stay with the land and any wind agreements will run with the land.
Finally, the governor approved a measure aimed at protecting pilots, passengers and others in the vicinity of public airports by regulating the height and use of structures around those airports. This law is not solely aimed at wind energy but shows where the law is headed. When describing the sorts of tall structures that might be found in Oklahoma, the Legislature also included wind turbines.
The landscape of Oklahoma is changing, and with it, our laws.
Oklahoma has set a goal of gathering 15 percent of its electricity from renewable resources by 2015, including wind energy. The laws passed this year have added some structure to our state's developing wind economy, but the Legislature must always be careful to balance the comfort of certainty against stifling innovation.
Susan Huntsman is a director with Crowe & Dunlevy in the law firm's Tulsa office.
Posted on Thu, November 11, 2010
by Crowe & Dunlevy filed under