When one thinks of “energy” and “Texas,” the first word that pops into most peoples’ heads is probably “oil.” For decades, Texas was one of the top oil producing states within the United States and was the center of the American oil business. Today, however, Texas is leading the development of a new form of energy – wind. In fact, the wind energy industry is both growing faster in Texas than anywhere else in the country, and Texas currently leads the nation in megawatts of wind power generated. Although Texas’ size and natural topography makes it second to North Dakota in potential for wind energy, Texas generates over seven times as much energy from wind as North Dakota. Furthermore, Texas generates more than two-and-a-half times as much energy from wind as the second-highest state, Iowa, and over three times as much as California, where the wind industry has been active the longest. What is the cause for this unparalleled success? It’s true that Texas adopted a renewable portfolio standard in 1999 (which it increased in 2005), but so have a lot of other states. Yet, Texas is way ahead of the curve –currently generating nearly double the amount of energy from wind as it’s RPS requires–by 2015.
If an RPS is not the answer, what is? The truth is that Texas’ achievement is due to a unique combination of minimal siting restrictions, lax environmental regulations, and a system called Competitive Renewable Energy Zones (“CREZ”), a state policy that incentivizes and expedites construction of transmission lines for connection to renewable sources.
CREZ is a $4.93 billion program for constructing transmission, a perpetual problem for wind farms that are often located in remote, rural areas, far from the population centers they are meant to serve. CREZ is designed “to get transmission out to prime wind energy areas before wind farms have even been developed.” Overall, the CREZ effort will approximately triple Texas’s current level of wind generation capacity to 18,456 MW by 2013. This is arguably the most important element of Texas’s renewable energy scheme because inadequate transmission can easily undercut an otherwise viable wind farm. Wind farms cannot generate a profit for their investors before they are connected to transmission lines. Moreover, traditional power plants already have to wait in long queues for permission to access the grid, even after their transmission lines are fully built. Delays in transmission construction would put wind farms far behind other power plants in the queue to contribute energy to the grid, further postponing a return for investors. By ensuring that a wind farm constructed out in the desert will actually be able to sell energy to consumer, the CREZ program makes Texas wind energy a more attractive investment.
Not only does Texas encourage wind power, it also lacks burdensome environmental regulations hindering its growth. Unlike other states that have imposed considerable procedural NEPA-like steps, or lengthy permitting processes on proposed wind farms, The Texas Parks and Wildlife Department does not have a formal role in wind development, nor is there a permitting process. Rather, the Parks and Wildlife Department only reviews a project if asked by the industry, and even then, they only provide an advisory opinion. Texas has also declined to provide voluntary wildlife guidelines for developers.
An additional aspect of Texas’s success is that it does not allow local NIMBY resistance to disrupt wind energy development. In Texas, wind siting is unregulated by state or county government and is a purely private matter between the developer and the landowner. Nor do local governments review siting decisions. In fact, the only means in which local governments can oppose a wind farm is by withholding tax abatement — hardly an effective deterrent.
Accordingly, Texas has been very hostile to nuisance suits brought by private citizens against wind farms. In Rankin v. FPL Energy, LLC, a group of property owners filed a nuisance suit against the builders and operators of a wind farm near their properties. The suit alleged that noise, vibrations, and shadow flicker caused by the wind turbines interfered with the owners’ ability to enjoy their land. The trial court precluded the jury from considering whether “the Plaintiffs are offended, disturbed, or annoyed because of the way the wind turbine project has affected their landscape, scenery, or the beauty of the area[,]” while the appellate court characterized most of the allegations as mere “emotional” injuries.
Thus, the combination of unregulated development, minimal environmental oversight, and a strong program designed to transport wind-generated electricity to population centers has created a highly favorable environment for wind energy development in Texas.
-Ophir Stemmer, Articles Editor
Am. Wind Energy Ass’n, American Wind Energy Association Annual Wind Industry Report, Year Ending 20088.
Am. Wind Energy Ass’n, Year End 2009 Market Report 4, 9 (2010), http://www.awea.org/documents/reports/4Q09.pdf.
Wind Energy Transmission, State Energy Conservation Office, http://www.seco.cpa.state.tx.us/re_wind-transmission.htm.
Id. (Texas has 9,410 MW of installed capacity compared to North Dakota’s 1,203 MW of installed capacity.).
 Texas’ RPS is 5880 MW by 2015. Id.
Tex. Util. Code. Ann. § 39.904(g) (2009).
Wind Energy Transmission, State Energy Conservation Office, http://www.seco.cpa.state.tx.us/re_wind-transmission.htm..
Lower Colorado River Authority, http://www.lcra.org/energy/trans/crez/faq.html.
See, e.g., Kate Galbraith, Pickens Scales Back Ambitious Wind Farm, N.Y. Times, July 8, 2009, at B3.
See Stephen M. Fisher, Note, Reforming Interconnection Queue Marketing under FERC Order No. 2003, 26 Yale J. on Reg. 117, 117–18 (2009).
See Texas Parks and Wildlife Commission Public Hearing (May 25, 2006) (statement of Kathy Boydson), http://www.tpwd.state.tx.us/business/feedback/meetings/2006/0525/transcripts/public_hearing/ (“Well, there is no permitting process in this state, and really no real regulation on the industry at this time.”) (cited in McCammon, supra note 143, at n.132.).
Melanie McCammon, Note, Environmental Perspectives on Siting Wind Farms: Is Greater Federal Control Warranted?, 17 N.Y.U. Envtl. L.J. 1243 at 1264 (2009).
See generally Kristina Culley, Has Texas Nuisance Law Been Blown Away by the Demand for Wind Power?, 61 Baylor L. Rev. 943, 962 (2009) (discussing Rankin v. FPL Energy, LLC, 226 S.W.3d 506 (Tex. App. 2008) and Texas’s treatment of nuisance suits against wind farms).
Rankin v. FPL Energy, LLC, 266 S.W.3d 506 (Tex. App. 2008).
Id. at 508.
Id. at 510.
Id. at 508 n.3. Texas is generally quite hostile to nuisance claims against industry. See, e.g., Domengeaux v. Kirkwood & Co., 297 S.W.2d 748, 749–50 (Tex. App. 1956) (finding that an oil rig operating near a tourist center did not constitute a nuisance).
Rankin, 266 S.W.3d at 511.