Ruling Imagination: Law and Creativity
Wind of Change: Forget the jet pack! I want a wind turbine in my backyard instead.
“Small wind” is a concept with which I was unfamiliar until beginning to do reading in connection with the the “Wind of Change” series Geniocity’s bloggers are now engaged upon. Small wind refers to turbines individual turbines, typically producing fewer than 100 KW, that — as described
by the Ontario Ministry of Agriculture, Foord, and Rural Affairs – are installed “at homes, farms and small businesses either as a source of backup electricity, or to offset use of utility power and reduce electricity bills.” The New York Times one year ago reported that wind turbines, remarkably, “are becoming more common in heavily populated residential areas as homeowners are attracted to ease of use, financial incentives and low environmental effects.” Because new technology allows homeowners who generate more electricity than they use to sell the excess back into “the grid,” the systems use the electricity from utilities as backup power, removing the need for large and expensive battery-based backup systems. The ability to switch between turbine and utility-generated power is also effortless. For all of these reasons, there has been an explosion in these home systems over the past four years. The American Wind Energy Association publishes several small wind “success stories.” I am amazed to learn too that small wind was invented by and is still dominated by the U.S.:
America pioneered this renewable technology in the 1920s when farmers not connected to the power grid attached generators to what used to be simple water-pumping windmills. Unlike utility-scale large wind turbines or solar photovoltaic panels, small wind turbines are the one renewable energy technology that the US still dominates.
Perhaps the biggest problem facing more widespread use of “plug-and-play” home turbines, however, is local opposition. As Joe Schwartz, editor of Home Power magazine, explained to the New York Times (and as my post on Friday pointed out), few people who haven’t lived next door to a wind turbine want to:
“Turbines work in rural areas with strong wind,” Mr. Schwartz said. “But in urban and suburban areas, neighbors are never happy to see a 60- to 120-foot tower going up across the street.”
Thus, local zoning laws pose one of the biggest legal barriers to real growth in home-based small wind. These local laws could be prevented by legal action at either the state or the federal level. State laws “pre-empt” local laws. That is, if a municipality’s laws conflict with the laws of the municipality’s state, the state’s laws control. And federal laws pre-empt state law, so that, if state law conflicts with federal law, federal law controls.
It is almost inevitable that if our states and the federal government do not step in to this area, local zoning laws will prevent huge growth in small wind. Until a majority of homeowners want their own wind turbines or, at least, most homeowners have had experience living near small wind turbines, most homeowners will not want home turbines in their own neighborhoods. Local zoning laws are enacted by people concerned purely with their own neighborhoods — city council members are legislating only for, literally, their own neighborhood. Larger legislative bodies, on the other hand, naturally have larger visions, and are much more likely to balance state and national policies and interests into any judgment over whether to even allow home-based small wind. It seems necessary, therefore, that if one is interested in a future that includes home-based small wind, that states or the federal government act to prevent local governments from using their zoning laws to stop home-based small wind.