The city of New Ulm, Minnesota may try to use eminent domain to promote wind power [HT: VC reader Paul Milligan]:
Does the government’s power of eminent domain include seizing the rights to the wind that wafts over your property? That’s the controversial question swirling around an 8 megawatt wind farm proposed by the southern Minnesota city of New Ulm and opposed by several farmers in rural Lafayette Township who refuse to grant their “wind rights” to the city utility.
“This is merely an evolution of principles that have been evolving since the sovereign rights of eminent domain were determined to exist,” according to Hugh Nierengarten, New Ulm City Attorney.
“Eminent domain is basically like a nuclear bomb,” said Clete Goblirsch, a farmer who refuses to sign an easement. “The repercussions would be long lasting and widespread, not just for us, but for the wind industry.”
While public utilities have fairly broad powers to use government authority to force property owners to sell to meet their needs, the New Ulm plan involves an unprecedented move to expand eminent domain authority to include the seizure of air space on private property for power generation.
“This is a first time this question has come up and the first time any entity has indicated they might use condemnation for wind development,” said Bob Cupit, an expert with the Minnesota Public Utilities Commission (PUC).
The opponents’ objections to the proposed five wind turbines include noise concerns, lower property values, and adverse impact on the landscape and rural atmosphere. “Nobody’s against wind energy,” said Jeff Franta, a farmer who’s helped organize the opposition. “We’re just against a project being forced on an area that doesn’t want it.”
This proposed use of eminent domain is unusual in two ways. First, it will be utilized to promote wind power, which may be the first example of its kind. Second, the property rights condemned are rights to wind rather than land, which is fairly unusual (I’m not sure if it’s completely unprecedented, however). Despite these novelties, the taking would probably be constitutional even under a narrow interpretation of the “public use” requirements in the federal and state constitutions. After all, the new owner of the condemned wind rights would be a government-owned public utility. Minnesota has enacted a relatively strong post-Kelo reform law (which I describe on pp. 2141-42 of this article), but it clearly permits takings for “direct public use” (i.e. – government ownership of the condemned land).
Despite its legality, I’m not convinced that this use of eminent domain is a good idea. As the linked article points out, wind farms have been successfully built and operated by private firms without using eminent domain. If the government wants to increase the use of wind power for environmental reasons, the best way to do so is simply to subsidize its production or consumption directly. There is no need to take the land of unwilling property owners. Better still, the government can simply tax the dirtier energy sources that compete with wind. That would make wind power more attractive to consumers, thereby also increasing private sector incentives for its production.
Finally, to the extent that New Ulm’s policy may be motivated by a desire to combat global warming, it makes little sense to do so by policy changes at a state or local level. New Ulm’s substitution of wind power for oil or coal will have virtually no effect on the worldwide global warming problem. Only a coordinated international initiative can hope to achieve that objective.
UPDATE: I should add that taxing the use of “dirty” energy is superior to using eminent domain or subsidies to promote wind power because the tax option leaves the choice of alternative energy sources up to market competition. Consumers and producers in a competitive marketplace are likely to do a better job of deciding which form of clean energy is more efficient than are government planners who don’t have their own money at stake.
PLR says:
I’m confused. Don’t you need to condemn a part of the land in order to get access to that delicious wind floating just above it? Are they condemning the cylinders of air space extending from each side (back and front) of the diameter of the vanes?
December 4, 2009, 3:27 pmPatHMV says:
Yeah, I want more information about these “wind rights.” I’m assuming that the windmills are not actually being placed on the landowner’s property, yes? Are the property owners upwind, such that the windfarms keep them from, say, flying kites on their property like they could before the windmills?
I suppose there’s some analogy which could be made to water rights, which keep an upstream landowner from using ALL the water in the river. But the idea that you have a right to some level of wind flowing over your property seems rather odd to me. While we do maintain the legal fiction that the owner of property owns all of the land and air, from the center of the earth below to the limits of the atmosphere above, but we don’t actually require airplanes to be granted servitude over each piece of property beneath their flight path.
Are there any instances of wind rights before this, like where a neighbor was required to tear down a fence because it was interfering with the other neighbor’s wind?
December 4, 2009, 3:40 pmGuy says:
Sounds like the government already owns the land to build on, but the neighbors are objecting to the wind farm because it interferes with their wind rights.
December 4, 2009, 3:41 pmDr. Patent says:
from the article:
Presumably, the wind rights easement would prevent some types of development on the affected land.
December 4, 2009, 3:43 pmBrett Bellmore says:
Yeah, I expect this involves not just the placement of the windmills, but prohibiting people upwind of the windmills from putting up any of their own? Given the usual way of eminent domain, they’ll get that far, and never put up any of their own…
December 4, 2009, 3:43 pmanon says:
That sounds like it would analyzed under the regulatory-takings framework announced in Penn Central (which dealt with “air rights”). For those not familiar with the case, it means that the landowners will get screwed.
December 4, 2009, 3:49 pmkdackson says:
Not just turbines upstream of the project, but ANY structure as they will affect airflow downstream.
December 4, 2009, 3:52 pmAllan says:
You wrote:
While you may be right that an international initiative would be a good thing, there is a chance that it can be done locally. That is, if every location did this, we would be better off. After a while, drops in the bucket add up.
On the other had, if 90% of the world did this and weaned themselves off oil and coal, there would be a bunch of oil and coal out there and it would be cheap. That might result in the rest of the places simply refusing to change and reaping the benefit of cheap fuel.
December 4, 2009, 3:54 pmDr. Patent says:
There’s a bit of twist here–the holdouts are not in New Ulm, the city that’s building the windmill farm. So New Ulm get either another county or the state to use eminent domain on its behalf.
December 4, 2009, 3:54 pmBrett Bellmore says:
Well, of course. The concept of “fair market value” is a total fraud: If you’re not planning on screwing somebody over, you don’t need eminent domain.
I find the whole concept of a political division using eminent domain outside it’s own borders somewhat problematic, even on top of the usual problems with the practice. As pointed out above, it means there’s no possibility at all of political blowback, an important limit on abuse of eminent domain completely gone.
December 4, 2009, 3:54 pmuh_clem says:
Let me get this clear: what’s being “taken” is the ability of the landowner to erect things on their own property (buildings, trees, other windmills, etc) that may interfere with the airflow to to the proposed windmills.
Presumably, there are no such structures or trees in place at the present time. Did any of the landowners have plans in place previously to erect non-conforming structures, or is this just hypothetical?
December 4, 2009, 3:57 pmPatHMV says:
Ok, so they want to expropriate an easement to prevent the downwind property owners from erecting, say, tall skyscrapers which would interfere with the wind continuing to flow.
I don’t see what the problem is, then. Ilya is correct in his analysis that because this is for power generation, that’s a “public use” under even the most restrictive historic definitions of the concept.
As for a good idea? Well, that’s a decision best made by the local government. Me, if I were a city council, I would doubt that wind would generate sufficiently inexpensive power in adequate quantities to make much of a difference. But I don’t live there and so have no idea of the conditions, etc. I also don’t know what the surrounding land looks like. If it’s mostly farm land and single-family residences, far from any likely urban area (and thus very unlikely that any skyscrapers would be built anyway, even in absence of the easements), then there’s very little harm going on, I think.
As for Ilya’s last paragraph, I disagree. “Think globally, act locally” is an annoying mantra, but not inconsistent with free market and federalist principles. I’d much rather see local communities try different things that may or may not work for them, rather than wait for a “coordinated international initiative” to dictate what all of us should do. Wouldn’t you, Ilya?
December 4, 2009, 4:01 pmDangerMouse says:
Well, of course. The concept of “fair market value” is a total fraud: If you’re not planning on screwing somebody over, you don’t need eminent domain.
And that’s why they’re not motivated by “global warming.” The town officials are being paid off by the Wind Farm company, either via campaign donations or some other form of bribery.
December 4, 2009, 4:02 pmanon says:
It’s worse than that. Under the Penn Central framework, the destruction of these property rights probably won’t be considered a “taking” at all, and therefore no compensation is necessary. The Penn Central Transportation Company lost $150 million worth of “air rights” and they didn’t receive a dime.
December 4, 2009, 4:02 pmFub says:
In some jurisdictions, “just compensation” is a fact determined by a jury trial if the owner contests the taking. That may be small comfort, but it is at least better than government setting a price entirely arbitrarily.
December 4, 2009, 4:05 pmIlya Somin says:
As for Ilya’s last paragraph, I disagree. “Think globally, act locally” is an annoying mantra, but not inconsistent with free market and federalist principles. I’d much rather see local communities try different things that may or may not work for them, rather than wait for a “coordinated international initiative” to dictate what all of us should do. Wouldn’t you, Ilya?
If it could work, of course I would. The problem is that there is virtually no chance that local initiatives will solve a massive worldwide problem like global warming. Moreover, an international initiative need not take the form of dictating the details of what every community should do. It could take the form of a carbon tax, which increases the cost of using oil, but leaves it up to private consumers to determine exactly how to reduce their consumption.
December 4, 2009, 4:08 pmIlya Somin says:
I’m confused. Don’t you need to condemn a part of the land in order to get access to that delicious wind floating just above it? Are they condemning the cylinders of air space extending from each side (back and front) of the diameter of the vanes?
No, you don’t have to condemn a part of the land to get the wind rights. You can just condemn the wind rights themselves. In the same way, the government can condemn an easement over a piece land (e.g. – to have government workers pass through it) without taking the underlying property rights to the land itself. The government COULD, of course, just take the entire piece of land, in which case they get the wind rights too. But they don’t have to.
December 4, 2009, 4:10 pmSuzy says:
Would this, for example, prevent one of the adjacent farmers from constructing an airstrip to fly his private plane? I don’t see it as a trivial form of “taking”. On the other hand, I don’t see why they have a law in the state demanding that wind rights all around the site be secured. Why isn’t it just a conflict between two property owners like any other, where the uses of the land might interfere with one another?
December 4, 2009, 4:15 pmGabriel McCall says:
I’m a little bit surprised that they’re going the eminent domain route and acknowledging the wind rights as property independent of the land itself. If I were the city’s lawyers and didn’t care about property rights, I’d cast the taking as a regulatory diminishment of value which, per Lucas v. South Carolina, requires no compensation unless it leaves the land with zero economic value.
December 4, 2009, 4:16 pmMark N. says:
It seems they’re going this route because Minnesota state law creates “wind rights” as a sort of quasi-property, so under state law they need to condemn the property. It does seem strange, otherwise— what they’re “taking” is the right of a landowner to prevent an adjacent landowner from constructing a wind turbine, which is more of a right-of-exclusion than a property right.
December 4, 2009, 4:18 pmBrett Bellmore says:
Which is conveniently doing this to people who can’t vote in the local government’s elections.
And I don’t think this will be limited to prohibiting skyscrapers. Windmills are actually moderately common on farms, grain silos and bars also block wind. It’s quite possible that the impact of this seizure on normal farm activities will be substantial.
December 4, 2009, 4:19 pmAdam J says:
Kind of a stretch to call this use of eminent domain abuse. The takings here seems to be limited to merely a negative easement preventing the owners from interfering with the windfarm. The use is inarguably public, and the risk of holdouts extorting extreme prices for the easement sound substantial. I generally agree that FMV is a joke- but how valuable could this easement really be to the farmers?
December 4, 2009, 4:26 pmPintler says:
The wiki page for New Ulm says it has an area of 9 square miles, or 5760 acres, and is flat as a pancake. If the good citizens like wind power, why don’t they erect the towers right downtown?
Don’t get me wrong – I think wind power is great, but I don’t see why I can insist on putting my wind power generator in your backyard, just because I think it’s too ugly or noisy or whatever to have in my backyard.
(I’m guessing, from the pictured topography that this isn’t like a dam, where the location matters – New Ulm looks like it’s flat to the horizon, so I don’t think it’s like putting turbines in a pass or natural wind funnel)
December 4, 2009, 4:33 pmGabriel McCall says:
Whoa- I missed the jurisdiction issue discussed above until I read the article.
Further complicating matters, the proposed site is located about 10 miles outside of New Ulm and in a different county, leaving opponents no option for holding local officials accountable at election time. “We don’t vote for city officials in New Ulm,” Franta said. “It wouldn’t do any good because we don’t vote for them.”
I wasn’t aware that a government could ever condemn property in an entirely different jurisdiction. What happens if Philadelphia tries to exercise eminent domain in New Jersey? That doesn’t make any sense. New Ulm’s domain over property in a different county is hardly eminent.
December 4, 2009, 4:35 pmAnthony says:
Calling this eminent domain at all is a stretch. Look at the article:
In other words, they have no interest in the value of the easement, except to the degree that they can use the easement as a way to prevent the town from building a wind farm. It’s NIMBYism at its finest.
December 4, 2009, 4:37 pmBrett Bellmore says:
Not at all. You could build a wind turbine in an enclosed room, with no wind at all. What they’re taking is the right to do anything which would slow down the wind reaching said wind turbine.
December 4, 2009, 4:38 pmPintler says:
I agree, but I think we might disagree about who the NIMBYs are. I’d say the NIMBYs are the people of New Ulm who want to put their windfarm in someone else’s backyard.
December 4, 2009, 4:49 pmRequired says:
The cross government aspect really causes problems with eminent domain. Although theoretically the city and township governments are only sub-governments of the Sovereign (Minnesota) it is still one government (the City of New Ulm) using ED to take property governed by another government (the Township of Lafayettte). This will cause problems with proving direct public use, the public which is benefiting is not the public which subject to ED. The cross government aspect is where this case is going to get stuck, but I have no idea how Minnesota will deal with it.
December 4, 2009, 5:02 pmThe Awful Truth says:
These wind farms have to be stopped. If we keep this break-neck wind overdevelopment, within a century winds will reach colosal speeds. Polar bears will be blown to Tahiti! The Poor Maldive Islanders will be blown into outer space! Kittens will be frightened!
Real wind scientists have proven this*. Only the tools of the wind farm companies continue to express doubts. Don’t be taken in by Big Wind! Only you can prevent Anthropogenic Global Winding!
* Data and models available upon submission of an FOIA request**
** Not really.
December 4, 2009, 5:09 pmGordo says:
Despite these novelties, the taking would probably be constitutional even under a narrow interpretation of the “public use” requirements in the federal and state constitutions. After all, the new owner of the condemned wind rights would be a government-owned public utility.
It would still be constitutional under a slightly less narrow interpretation even if the utility were privately owned – the “public purpose” provisions have been found to encompass common carriers such as railroads and private regulated utilities since the 19th century.
December 4, 2009, 5:16 pmAbdul Abulbul Amir says:
Don’t forget ice throw. A chunk of ice pitched off one of those big turbines from 400+ feet up can kill. In Minnesota that danger exists at least five months a year.
December 4, 2009, 5:19 pmStrict says:
This
And This.
Enjoy.
December 4, 2009, 5:25 pmCCD6116 says:
I don’t know much about the law but I do about energy. I was a consulting engineer for DOE for about 4 years. Wind and Solar power are a joke!! The biggest requirement for an electrical generation and distribution system is RELIABILITY !!! Wind and solar only work when the wind is blowing (at a very narrow range of speeds) and when the sun is shining at peak levels. They will never, ever, be more then a small part of any generation system. The only reason any of the systems are being built is 1. The government is forcing the utilities to build them!! and 2. The government is subsidizing some of the costs. What most people do not understand is that building these “green” systems will have no effect on the generation needs of a utility. They will not be able to permanently shutdown any of their current (coal) generation plants unless they are replaced by either gas or nuclear energy.. The sad fact is it will increase the costs to consumers. I am really, really sick of the government forceing this on the consumers.
December 4, 2009, 5:26 pmM. Gross says:
There is a legitimate possibility of injury here, presumably, the wind rights restriction would prevent the installation of a windpump, which, while less common in the days of broader electrical availability, are certainly still used.
December 4, 2009, 5:35 pmNorthern Dave says:
Correct me if I’m wrong, but don’t you Americans have laws regulating water rights very analogous to this?
As I recall, if I am not using the water in the river through my property but you farther downstream are there are issues if I decide to put in a mill on my upstream part (even if I live in a neighbouring county…).
Wouldn’t this apply to Wind Rights?
Curious….
December 4, 2009, 5:39 pmGuy says:
I think it’s safe to say the landowner’s don’t realistically face any burden from the taking of their wind rights (except in the extreme abstract of not being able to build something that would interfere with the wind, which I doubt they ever intended to do). They’re just using this as an excuse to keep the windmills away from them.
December 4, 2009, 5:41 pmMark N. says:
I read it as the opposite— the farmers seek to prevent New Ulm from building a wind farm, because it would slow down the wind reaching the farmers’ land, which under MN law is a quasi-property right called “wind rights”, essentially the right to not have the wind coming to your land blocked by someone else.
December 4, 2009, 5:46 pmShelby says:
Northern Dave: US water laws vary by jurisdiction, but roughly speaking there are two systems. One allocates priority to the upstream user; the other, to the first-in-time user. I don’t know which applies in Minnesota.
December 4, 2009, 5:48 pmEminent Domain Week Continues: On New Ulm and Wind Space | DUI Law & Lawyers Blog says:
[...] for the week), comes to us courtesy of Andrew Breitbart’s Big Government blog. (Hat tip: Volokh). The story presents a fascinating question: Can a state or city buil Read Full Story from WSJ Law [...]
December 4, 2009, 6:33 pmChrisIowa says:
Probably very much like Iowa. There is water in sufficient quantities that water allocation has not yet been a significant issue.
December 4, 2009, 6:59 pmrhhardin says:
Wind power also generates pulses of noise as the blades go around, and casts periodic shadows on your windows when the sun is in the wrong place.
So peaceful enjoyment is also taken.
December 4, 2009, 7:55 pmpc says:
I guess we can just block all sunlight from reaching the earth and we’ll suffer no ill effects.
December 4, 2009, 8:01 pmTatil says:
This is not true. They cannot vote for the city requesting the eminent domain takings, but they can certainly vote for the local institution that may agree to actually use the power of eminent domain. In that sense, City of New Ulm is no different than any other private developer.
December 4, 2009, 8:19 pmChrisIowa says:
Much as I hate to dispute such an eminent authority such as Wikipedia, But it is incomplete. It has been just a few years since I have been to New Ulm, but IIRC New Ulm is situated in a wide river valley. Most of the classical town is situated in the mile wide very flat, valley floor. The old industries such as the flour mill and saw mill got their power from the river, and the Schell Brewery got their ice from the river. The downtown and old parts of town are located nearby, on the flat areas near the river. At the edges of the valley are hills of on the order of 100 feet high. Though the hill on the south edge of town provides an excellent site for the Hermann Monument, it makes the town itself geographically unsuitable for a wind tower. The newer parts of town are spilling over onto the higher lands outside of the river valley.
I do not know why it would be necessary to go 10 miles outside of town as opposed to 1, but if you’ve ever been there and are at all aware of geography, it is obvious why the wind towers are not optimally placed in the town itself.
December 4, 2009, 8:28 pmAnthony says:
Semi-true. It’s not necessary for a power source to work all the time, it’s just necessary that it be highly predictable when it will work, and you don’t want its power output to fluctuate rapidly or unexpectedly. Wind farms produce rather dirty power, so you don’t want it to form a high percentage of your power grid. By comparison, solar-photovoltaic power plants don’t run all the time, but their downtimes are quite predictable and unlikely to be abrupt, and solar-thermal power plants can actually store energy as superheated water for long enough to work for baseload power.
As for the people of New Ulm engaging in NIMBY-ism, quite plausibly true. It’s not like you can’t have multiple groups engaged in the same behavior, which leads you to BANANA.
I must say that fighting this battle in terms of property rights over wind is new to me; I’m used to arguments over environment impact reports.
December 4, 2009, 8:46 pmDerHahn says:
I sincerely hope you folks that think this is about paying the farmers to keep them from putting up skyscrapers in front of the wind turbines are being sarcastic.
Anthony is right. It’s a provision stuck in the law to give the liberal NIMBYs who want wind power so long as those big-ass towers are blocking somebody else’s view (and belive me, there are plenty of them in the People’s Republic of Minnesota) a way to block construction.
December 4, 2009, 9:01 pmTongue-in-Cheek says:
If there is any state that should support any form of GW it is Minnesota, and especially those of its residents who live on the wind swept plains of rural Minnesota (Yes, New Ulm is in the farm belt, so I rather doubt condo developments are imminent).
December 4, 2009, 9:22 pmA. Zarkov says:
Does it matter if the net present value, of the wind energy generated is negative? In other words, if the risk adjusted cost of capital is less that the present value of the future energy generated over the life cycle of the wind turbines. Or in legal terms, can the government take your property to lose money with it? If the wind turbines are a money loser, how can one argue it’s a public benefit? I suppose there is always that “externality” ploy, but I have never seen the externality quantified.
December 4, 2009, 9:31 pmFrancis says:
Extra-territorial condemnation powers, in California at least, are granted specifically by statute. Water districts use that power a lot when they drill wells where the water is, then need to bring that water via pipeline into the district boundaries. The power of municipalities to condemn extra-territorial land for road purposes is, iirc, quite complicated.
December 4, 2009, 9:31 pmEminent Domain Week Continues: On New Ulm and Wind Space « Laser Hair Guide says:
[...] for the week), comes to us courtesy of Andrew Breitbart’s Big Government blog. (Hat tip: Volokh). The story presents a fascinating question: Can a state or city build a wind farm and condemn the [...]
December 4, 2009, 9:49 pmDuffy Pratt says:
Zarkov:
I can think of two examples of the type of situation you are describing. When New York City condemned the subway systems, they were privately owned and running at a loss. The city argued that the FMV of the various lines was negative, and therefore the owners were not entitled to compensation. I don’t recall the result, but I think the owners got something.
On Long Island, a similar thing happened with the beach clubs on the ocean. They ran at a loss and were in danger of folding. The towns condemned them with the idea of turning them into town run beach clubs, and eventually just town beaches. Again, the towns maintained that there was nothing to compensate. Here, the issue was a bit more complicated because the main reason the land was worthless was because the towns refused to rezone the land for anything that anyone might want to build on. In this instance, the towns ended up paying quite a bit for the oceanfront property, but nowhere near what it might have been worth if the town had permitted some development.
December 4, 2009, 9:53 pmRick Conrad says:
How can the city of New Ulm justify the use of eminant domain to aquire the wind rights to land outside of city limits and in another county? Eminant domain should only apply to land under city control. To be fair when a government takes your land for public need they should have to pay you ten times the highest value they taxed it at in the previous ten to twenty years. Does the Government work for us or do we collectively own our neighbors lives and livelyhoods? Rick Conrad Goodhuewindtruth.com
December 4, 2009, 10:01 pmPintler says:
@chrisiowa – thanks! I’ll take first hand knowledge over wikipedia anytime :-)
December 4, 2009, 10:19 pmRick Conrad says:
You can find more information about wind energy and wind rights and problems by googling “northstar PUC edockets”. This will bring up the PUC efiling search page towards the bottom of the page enter year 09 docket 845 . This will bring up information and public comments about large scale wind energy conversion systems setback requirements. Basically Minnesota law says that a Property owner has the right to convert the energy of the wind that blows across their property. You are limited in that any turbine you erect must be 3 rotor diameters inside the boundaries of your property east and west, across the wind. And 5 rotor diameters north and south along the predominate direction of the wind. Google” rick conrad goodhue wind problems setbacks ”
December 4, 2009, 10:21 pmRick Conrad
markm says:
I doubt it. Wind turbines for grid power generation are typically several hundred feet in diameter and height. A fifty-foot tall barn (and I haven’t seen any barns that high built since the 1950′s) would have little impact on such a turbine. A silo might go higher, but it’s thin; there’s no effect a few hundred feet downwind. The kind of windmills that drive waterpumps in remote corners of the farm are shorter than 50 feet and much smaller than a silo. (These make sense only by staying small enough and easily erected enough to cost less with installation than a power line.)
With county populations under 30K, high-rise buildings aren’t going to be an issue in this area. The other three things that would need to be prohibited by the easement are a wind turbine to provide power for the whole farm or even larger, tall trees (over 50 foot, say) planted in line as a windbreak, or a large cluster of silos. Generating your own power (with a turbine big enough to be costly but too small for the economies of scale that kick in at hundreds of feet) only makes economic sense when your location is so far off grid that getting hooked up costs over 5 grand; if you’re concerned about the wind power development next door, you aren’t that far off the grid. From the looks of the picture of New Ulm in Wikipedia, they haven’t managed to grow any 50-foot trees yet, and that’s in the river valley, so I don’t think keeping windbreaks short enough to meet a reasonable requirement of non-interference with the turbines would be a problem.
So there are two things that someone might want to build that are banned near by: A wind turbine similar to what New Ulm wants to put up, or a cluster of silos/grain elevator that stores the grain from several square miles of land. The near by landowners should be compensated for giving up the possibility of building such things right there, but the FMV of that right can’t be much.
The real issue isn’t wind rights, but NIMBYism. And IMO much of that is mistaken; the big modern turbines are pretty quiet, don’t block the view, and look pretty elegant. Would the blades block the sun? Since the wind farm is on 237 acres (nearly a half-mile square of it’s own), the shadows should extend to neighboring land only near dawn and sunset, and I doubt any one spot would be affected more than half an hour a day.
OTOH, there may be real safety issues. I don’t know about throwing ice; that’s not something my sister experienced with the turbine near her house, and I’d expect that Traverse City, Michigan would see icing conditions much more frequently than southwestern Minnesota. But if the blades ever come loose, they’ll travel a long ways…
Finally, as a matter of policy and economics most wind farms make no sense. The power they provide costs far more than power from coal, and it’s unreliable and destabilizes the grid. Wind farmers aren’t in the power business so much as the subsidy-collection business. (Chances are that describes many of the neighboring farm operations, too.) But the jurisdictional oddity means that least the neighboring landowners won’t be taxed to pay for New Ulm’s mistake!
December 4, 2009, 11:05 pmBrett Bellmore says:
You might think that, and I might think that, but Teddy Kennedy didn’t think that. I agree that it’s nimbyism, but the farmers HAVE been deprived of something they had before: A legal right to enter that very same subsidy collection business. That’s gotta be worth something.
December 4, 2009, 11:25 pmA. Zarkov says:
Your examples are somewhat the reverse. Could the city replace profitable businesses with ones that lose money by eminent domain? How could the city argue a public benefit in such a case?
On your subway example. New York City would not let the privately owned subways increase fares, and that’s why they were going bankrupt. After the city took them over, it went ahead and raised fares. The People’s Republic of New York goes way back. The city also made its own asphalt in two parabolic shaped plants right next to the East Side Drive at about 90th St. See here. I once heard that it cost the city three times as much as contracting the manufacture out to private business. I think the city eventually did just that, and the buildings are now landmarks.
December 4, 2009, 11:35 pmA. Zarkov says:
Whoops try this for the link.
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December 5, 2009, 2:48 amRick Conrad says:
Wind rights are normally leased by signing a wind rights lease. In the lease you agree not to do anything that might block the wind. Anything could be cosidered to block the wind. If your house burned to the ground rebuilding it could be considered to be a violation of your wind lease in an extreme case. Wind right leases are very one sided documents.
December 5, 2009, 9:27 amRick Conrad says:
While wind generation is not now profitable it may be in the future as whole electrical prices rise and equipment costs come down. Why should these farmers be penalized for holding out for a better deal?
December 5, 2009, 9:41 amFedya says:
General Motors? ;-)
December 5, 2009, 9:47 amRequired says:
francis:
contra Rick Condrad
The big problem with the second view is that city governments are not sovereign and the legal basis for ED lies in the nature of sovereignty (I leave as an exercise for the reader the act of reviewing ED and sovereignty) and the sovereign here is the State of Minnesota which encompasses both polities. The big problem with the first approach is Minnesota’s new requirement that ED only be used for direct public use. Unless there is a case which I am unaware of, nothing is set in stone here, a court could accept either proposition: direct public use only refers to some part of the Minnesota public regardless of which political subdivisions of Minnesota that public and the act occur in; or, direct public use requires that those who are subject to the ED taking be part of the public which gains the use.
December 5, 2009, 12:52 pmDoc Merlin says:
So if the government nationalizes a business they can suddenly legally take property rights?
I wonder would GM be able to seize land as its in large part owned by the government?
December 5, 2009, 2:37 pmJoseph Somsel says:
These wind mills will be quite intrusive upon the neighbors, make no mistake. While NIMBYism is a difficult issue, in this case it is justified and a public taking is not. Build one next door to me and I’d fight it tooth and nail too.
As noted, WHICH public benefits and which private persons bear the cost? In this case, the private individuals are NOT members of the supposed beneficiary public, ie those who consume the electricity produced.
An analogy is solar rights. If I build a solar panel, can I expect to extract by government coercion a prohibition on neighbors shading it?
That said, as a power engineer, wind and solar are scams with little or no net worth to the electrical consumers or to the taxpayers who subsidize them.
December 5, 2009, 3:04 pmJust Dropping By says:
There are some candlemakers here who’d like to ask about signing their petition.
December 5, 2009, 3:39 pmG says:
Only after they’ve pried the beans from my cold, dead fingers will they have the rights to my wind?
December 5, 2009, 6:06 pmJardinero1 says:
It’s a myth that wind and solar energy do not alter the environment. Windturbines remove kinetic energy from the atmosphere and solar alters the albedo of the ground where it sits. Theoretically, if you employ wind and solar in a way that meaningfully displaces coal, gas or nuclear; you would significantly alter the climate.
December 5, 2009, 7:23 pmAnthony says:
For a very limited value of significantly, yes; it’s 2-3 orders of magnitude lower than fossil fuels (due mostly to the very long persistence of CO2 in the environment), though within a limited area (i.e. the actual area of the power plant) it can be much more significant.
December 5, 2009, 9:43 pmRick Conrad says:
The carbon emissions from the the construction of a lwec wind turbine are offset by the “free energy” captured by the turbine after fifteen years of turbine operation. The concrete for the foundation is one of the major sources on carbon emissions. Since the design life of a turbine is twenty years that is not much of a benefit. Then there is always the question of how to environmentally dispose of the three 150 foot long fiber glass rotor blades.
December 5, 2009, 10:54 pmNew Pseudonym says:
If MN is the only state that has established these “wind rights” I imagine those who insist the state can’t create rights would say that MN is the only state that has discovered them.
While the earlier analogy with water rights is appropriate to a degree, it seems a better analogy would be with the old property right to Ancient Lights. This imposed restrictions on construction that would interfere with light that had fallen on a property for a period of time (the memory of man runneth not to the contrary). IIRC there are few if any US jurisdictions that recognize this right, but some states are funny about portions of the common law that have not expressly been repealed by statute and what date forms the baseline for common law. Under that doctrine, construction upwind that interfered with the windfarm’s wind (light) would be prohibited without the need for compensation. This doctrine would mean there was no taking by the state, but the farmers could recover for the nuisance caused by noise, etc. that harmed their property. A point not made earlier is that this kind of harm is not based on the fact that the farmer’s property is upwind of the power generation site, but upon the fact that it is near. Crosswind and downwind property owners would be entitled to similar compensation.
December 6, 2009, 3:38 pmreadery says:
What’s the problem? The issues seem very similar to people who object to having land seized for a highway or railroad with all the noise that comes with the cars or the train able to come through at any hour. Electric power generation if done as a public utility is no different. It isn’t called “utilities” for nothing.
The only issues would seem to be (a) whether it’s good policy and (b) the price. Otherwise, this is a simple public use taking, no special legal or constitutional problems.
December 6, 2009, 9:23 pmED Maven says:
TO: Gabriel McCall
Yes they can. It’s called extraterritorial condemnation and is done regularly. Many major airports are located outside of the cities they serve – their adverse environmental effects (noise, vibration, smoke = nuisance) are thus dumped on people who can’t vote for officials of the city that’s doing the dumping.
December 6, 2009, 9:59 pmCCD6116 says:
Anthony.
There few places in the US where the sun shines enough to make Solar anything like you suggest. On top of that peak power needs are most often early evening (5-7 PM) and early morning (5-7 AM) when solar activity is either very low or not at all. Besides the limitation of the above moving the power from the above locations to the load centers requires a rather expensive infrastructure and it takes years to build. Again solar and wind will never ever be anything but a JOKE!!
December 7, 2009, 8:20 pmHarley Marshall says:
Wind power is a good source of electricity but it also takes up lots of space just like solar power plants..:”
April 30, 2010, 9:31 pm