The current wind energy boom, while championed by the Department of Defense (DoD), President Biden, and energy developers alike, is sometimes at odds with military operations. A wind-based renewable energy development, or windfarm, with soaring modern turbines hundreds of feet high may be close enough to a military flight path or radar system to cause radar interference or put pilots at risk of accident. The DoD often seeks to engage in discussion to
“mitigate” these concerns with a developer and allow the windfarm to continue in an altered form. Often this succeeds. Occasionally it fails.
While this issue has sporadically appeared in domestic headlines over the past fifteen years, the legal regime put in place since 2011, built around the DoD “Clearinghouse” to facilitate mitigation discussions, has proven
inadequate. This is because no arm of the federal government, individually or collectively, has legal authority to halt a project in the event mitigation discussions collapse. Thus, theoretically, a project can press forward in the face of strident objection from the DoD and Federal Aviation Administration (FAA) over the project’s potential impact for military operations and hazard to aviation. This has happened on two occasions, and while both projects failed to reach completion, in both instances the federal government lacked authority to stop them.
As the number of windfarm developments soars, a revised legal regime is crucial to ensure wind energy can continue to grow while affirmatively protecting military installations and flight paths. This Article will conclude that there are three options for revising this regime. The first empowers state governments to control windfarm siting through legislation of their choice (and has been adopted in three states). The second option relies on federal legislation to give the FAA decisive authority to halt windfarms with a potential to impact military operations. Finally, the third option constitutes
federal legislation to create a statutory presumption of hazard for windfarms within a certain distance from military installations and flight paths.
Empowering the federal government with decisive authority in the windfarm siting process may result in litigation concerning whether federal “veto” of such a project constitutes a regulatory taking under the U.S. Constitution. This Article explores that possibility in detail, concluding that while the outcome of prospective litigation is unclear, the real “reward” to protect military operations is well worth the speculative “risk” of paying claimants through regulatory taking claims.