Dynamic Federalism and Wind Farm Siting

October 30, 2014

An “all-of-the-above” energy policy has led to the emergence of wind power as an energy resource of choice. But despite their considerable environmental and economic advantages, wind energy systems do have drawbacks. Among these, the mechanical and electromagnetic properties of wind turbines encroach on U.S. Department of Defense (“DoD”) military installations and activities. These encroachment concerns, including interference with air traffic control and other radar systems, create tension between national security and the development of renewable energy sources.  Because utility siting decisions are made at the state and local level, the federal government’s ability to guard against encroachment by wind farms is limited to advisory determinations issued by the   Federal Aviation Administration.
In 2013, North Carolina enacted a statute requiring consultation with DoD officials as a prerequisite to applying for and issuing a wind farm permit. This statute  effectively allows the DoD to prevent the state from issuing such a permit. This Article explores wind farm siting law in general and explains how North Carolina’s law empowers the DoD in this  regard. The Article also analyzes whether it is advisable for a state to yield such authority to a federal government agency and considers whether it is appropriate for the DoD to exert this level of influence over the state permitting process.