Jousting at Wind Mills: When Wind Power Development Collides With Oil, Gas, and Mineral Development

K.K. DuVivier 
University of Denver Sturm College of Law
Roderick E. Wetsel 
University of Denver Sturm College of Law
Rocky Mountain Mineral Law Institute, Vol. 55, No. 9 
University of Denver Legal Studies Research Paper No. 09-21 

Abstract:      
Success for the renewable energy economy rides on wind power. Although wind currently accounts for only one percent of the total electricity generation in the United States, the Obama administration hopes to leverage it to twenty-five percent by 2025. Even before setting the current goals, our government recognized wind power as 'the fastest growing source of new power generation.'

As fate would dictate, some of the nation’s most promising wind resources overlap regions of the country rich in oil, gas, and other minerals. The intensive surface footprint of wind farms makes conflict with the development of underlying resources inevitable.

This paper reviews the expansion of wind power in the United States and explores methods of approaching wind v. mineral conflicts. Models range from traditional surface and sub-surface rules - such as the dominant-servient estate and the accommodation doctrines - to express agreements altering common law outcomes. The paper also briefly discusses the uncertainty that might result if traditional assumptions do not apply and recommends strategies for resolving disputes to enhance the concurrent development of our nation’s energy resources.
[Download paper via this link]