windy city heat: how wind energy can help power

167

WINDY CITY HEAT: HOW WIND ENERGY

CAN HELP POWER ILLINOIS INTO THE

FUTURE

Matthew K. McCasland

TABLE OF CONTENTS

I. Introduction ......................................................................................... 168 II. Background ......................................................................................... 169

A. Wind Energy Basics .................................................................... 169 B. History of Wind Energy in the United States and Illinois ........... 171

1. United States Wind Energy History ...................................... 171 2. Illinois Wind History ............................................................. 173

III. Analysis ............................................................................................... 175 A. Technological Requirements ....................................................... 175

1. Rotor ...................................................................................... 175 2. Blades .................................................................................... 176 3. Active Controls ...................................................................... 177 4. Towers ................................................................................... 177 5. Drivetrain............................................................................... 178 6. Offshore Wind Development ................................................ 179

B. Benefits ........................................................................................ 180 1. Job Creation ........................................................................... 180 2. Environmental Benefits ......................................................... 181

C. Problems ...................................................................................... 181 1. Nuisance ................................................................................ 182 2. Zoning ................................................................................... 185

IV. Recommendation ................................................................................ 188 A. The Federal Government Must Promote Wind Energy ............... 188 B. Illinois Must Continue Its Path Toward Renewable Energy ....... 189 C. Wind Turbines Must Not Be Classified As Nuisances ................ 190

V. Conclusion .......................................................................................... 191

J.D. candidate, University of Illinois, College of Law, 2012. B.A., University of Wisconsin-

Madison, 2008. I would like to thank my family and friends for their support through the years. I am also

grateful to fellow JLTP members for their helpful insight and edits.

168 JOURNAL OF LAW, TECHNOLOGY & POLICY [Vol. 2012

I. INTRODUCTION

Many people believe Chicago is called the “Windy City” because of the

strong winds that come off Lake Michigan.1 The wind energy community sees

Chicago as the “Windy City” because it is the de facto wind energy capital of

North America.2 In fact, several of the world’s largest wind energy companies

have opened offices in Chicago.3

America has been cognizant of alternative energy for well over a

century.4 In the not-too-distant future, as our finite quantity of fossil fuels

decrease, alternative energy sources will have to play a bigger role in providing

energy to the United States.5 United States electricity demands will increase

by approximately 39% from 2005 to 2030.6 So how does America satisfy

those demands? One solution is for the United States to turn to alternative

energy. President Bush stated in 2006 that America needs greater diversity in

its energy portfolio.7 That statement led to a collaborative effort between the

U.S. Department of Energy, the American Wind Energy Association, and a

major engineering and consulting firm to propose having 20% of the United

States’ energy provided by wind energy by the year 2030.8 This group put

together a report in 2008 that laid out the foundations of what needed to be

accomplished by industry and government to help achieve that goal.9

The government has started to embrace the idea of wind energy and the

goal of 20% by 2030. In 2011, United States Congressman Paul D. Tonko

from New York introduced a bill in the House of Representatives titled Wind Energy Research and Development Act of 2011.

10 This bill would give

1. There are many different explanations offered as to the “Windy City” nickname. Such explanations

include the weather, a rivalry with Cincinnati, and bidding for the World’s Fair: See Nathan Bierma, Windy

City: Where Did It Come From?, CHI. TRIB., Dec. 7, 2004, http://articles.chicagotribune.com/2004-12-

07/features/0412070313_1_windy-city-dana-chicago-press (providing newspaper articles that connect “Windy

City” to the World’s Fair bid); Barry Popik, Windy City, BIG APPLE (Oct. 11, 2004), http://

www.barrypopik.com/index.php/new_york_city/entry/summary/ (discussing the origin of “Windy City” for

Chicago using newspaper evidence).

2. Chicago: The Home of Wind Power in North America, ILL. WIND ENERGY COAL.,

http://www.windforillinois.org/chicago/ (last visited Feb. 13, 2012) [hereinafter The Home of Wind Power].

3. Id.

4. DAN CHIRAS, WIND POWER BASICS 1 (2010).

5. See, e.g., Tim Appenzeller, The End of Cheap Oil, NAT’L GEOGRAPHIC, June 2004, http://ngm.

nationalgeographic.com/ngm/0406/feature5/fulltext.html (“Humanity's way of life is on a collision course with

geology—with the stark fact that the Earth holds a finite supply of oil.”).

6. U.S. DEP’T OF ENERGY, 20% WIND ENERGY BY 2030: INCREASING WIND ENERGY’S CONTRIBUTION

TO U.S. ELECTRICITY SUPPLY 1 (July 2008), available at http://www.nrel.gov/docs/fy08osti/41869.pdf

[hereinafter 20% BY 2030].

7. Id. President Obama also addressed green energy as a way to create American jobs and having the

federal government place a greater emphasis on investing in alternative energy. See President Barack Obama,

State of the Union (Jan. 24, 2012) (transcript available at http://news.nationalpost.com/2012/01/24/state-of-

the-union-address-full-text/).

8. 20% BY 2030, supra note 6, at 1.

9. Id. (stating how this report “estimates the impacts, and discusses specific needs and outcomes in the

areas of technology, manufacturing and employment, transmission and grid integration, markets, siting

strategies, and potential environmental effects associated with a 20% Wind Scenario”).

10. H.R. 2782, 112th Cong. (2011). A previous identical bill was introduced by Representative Tomko

in 2009. Wind Energy Research and Development Act of 2009, H.R. 3165, 111th Cong. (2009). That bill,

unfortunately, did not make it out of committee before the 111th

Congress concluded, but Congress did

No. 1] WINDY CITY HEAT 169

additional funding to the Department of Energy to improve wind energy

development and specifically allocate money for research and development to

assist in the goal of 20% wind energy by 2030.11

This Note discusses how Illinois can help America reach that 20% wind

energy goal. It focuses on the technological improvements that need to be

made in wind energy, current Illinois law and policies in place that affect wind

energy, and what laws need to be in place to promote wind energy. Part II will

discuss the background and history of wind energy and wind energy

development in the United States and Illinois. It will also discuss the basics of

how wind turbines and wind energy work.

Part III will analyze the necessary technological and research

advancements needed to reach the 20% goal by 2030. Specifically, this section

will discuss technological improvements to the wind turbine structure

including the rotor, blades, active controls, towers, and drivetrain. Part III will

also explore offshore wind development and the technological improvements

that will help to increase productivity from offshore wind turbines, focusing

specifically on wind energy development on Lake Michigan due to its

connection to Illinois. This section will also discuss the environmental and

economic benefits of wind energy, again with a focus on the state of Illinois.

Finally, Part III will address problems that may arise with wind energy in

Illinois. This includes analyzing nuisance claims under Illinois law and

discussing the zoning laws of Illinois to see whether the laws are detrimental or

beneficial to Illinois residents and the wind energy community.

Part IV will recommend three positions: (1) that that the federal

government should embrace wind energy as an alternative energy source, by

passing necessary legislation and changing where energy subsidies are

distributed—away from fossil fuels and toward green energy; (2) that Illinois

should also embrace wind energy, and that regulation of wind turbines should

be done on a local level; and (3) that wind turbines should not be classified as

nuisances, and the Illinois state legislature should pass a statute redefining

nuisance and prohibiting landowners from bringing nuisance claims against

wind turbine operators.

II. BACKGROUND

A. Wind Energy Basics

Wind energy, in its most basic form, is harnessed when wind is captured

by wind turbines and converted into energy. There are multiple steps required

to complete this conversion. First, blades are mounted at the top of a turbine

conduct hearings on the bill that will be utilized in this Note. As of publication, the 2011 bill is still in the

committee stage.

11. See H.R. 2782; H.R. REP NO. 111-248 (2009) (presenting an argument by Representative Paul D.

Tonko about how the Department of Energy is calling for 20% wind energy by 2030 and that the purpose of

this bill is to help the wind energy sector reach that goal).


tower, because the higher the blades, the more energy the blades can capture.12

Wind turbines vary in height but most are roughly 100 meters tall or less.13

Next, the wind turns the blades by acting “much like an airplane wing.”14

When the wind blows, a pocket of low-pressure air forms on the downwind side of the blade. The low-pressure air pocket then pulls the blade toward it, causing the rotor to turn. This is called lift. The force of the lift is actually much stronger than the wind’s force against the front side of the blade, which is called drag. The combination of lift and drag causes the rotor to spin like a propeller, and the turning shaft spins a generator to make electricity.

15

A turbine normally consists of three long and rectangular blades that spin

around a rotor hub that is connected to a nacelle enclosing.16

The nacelle

enclosing contains the gearbox, generator, electrical controls, and low-speed

shaft.17

The gearbox connects the gears from the low-speed shaft of the blades

to the high-speed shaft which drives the generator and produces electricity.18

Then, the generator’s job is to transform the mechanical energy provided by

the blades into electrical energy.19

The basic process of energy transformation

is that “[t]he blades transfer the kinetic energy from the wind into rotational

energy in the transmission system, and the generator is the next step in the

supply of energy from the wind turbine to the electrical grid.”20

The energy then moves on a per need basis from the electrical grid to

homes and businesses. There are three main wind-energy-system options to

move the energy from the turbine to a location: grid-connected, grid-

connected with batteries, and off-grid.21

A grid-connected system connects

directly to the utility company’s electrical grid and does not require the use of

any batteries.22

The utility company’s grid system accepts surplus energy and

also supplies energy when the wind turbine is inactive.23

From the grid, the

electricity then goes to where it is utilized. Effective storage of wind turbine-

12. Wind Energy Basics, NAT’L RENEWABLE ENERGY LABORATORY, http://www.nrel.gov/learning/

re_wind.html (last visited Feb. 27, 2012) (stating that wind blows at a stronger, more consistent rate the higher

in altitude one gets from the earth).

13. Id. See also 20% BY 2030, supra note 6, at 26 (discussing how most wind turbines top out at 100

meters in height because of economic constraints).

14. Wind Energy Basics, supra note 12.

15. Id.

16. A rotor hub is where the blades are mounted on a shaft; a nacelle enclosing is where all the

mechanical parts of the wind turbine are enclosed. See 20% BY 2030, supra note 6, at 26.

17. These are the inner workings of the nacelle enclosing which is the next “stop” for the energy. This

is the start of the conversion of mechanical energy to electrical energy and where that conversion ends up

taking place. Id.

18. Wind and Water Program: How Wind Turbines Work, U.S. DEP’T OF ENERGY http://

www1.eere.energy.gov/windandhydro/wind_how.html (last visited Feb. 27, 2012).

19. Henrik Stiesdal, The Wind Turbine: Components and Operation, BONUS ENERGY A/S, Autumn

1999, at 15, available at http://old.windmission.dk/workshop/BonusTurbine.pdf.

20. Id.

21. CHIRAS, supra note 4, at 37.

22. Id.

23. The benefits of this system are that while you are not storing up wind energy for use later, you are

getting credits for the excess energy that you provide the utility company. When one does not have any wind

energy coming in, they then can use the utilities energy free of charge until their credits run out. Id. at 38, 44–

45.


produced energy is difficult without incurring significant costs.24

A grid-connected with batteries system is the same as a grid-connected

system except that it requires a battery bank to store excess energy.25

The

batteries are designed to be a backup system for when the utility company’s

electrical power grid goes out, not for when the wind stops.26

When the wind

stops, electricity is supplied by the utility company’s grid, not the batteries.27

Off-grid systems have no connection to the utility company’s grids and

thus must supply all their own electricity.28

When wind dies down, there is a

battery backup system similar to the grid connected with batteries system

which stores surplus energy that allows homeowners to continue to receive

electricity.29

Should that electricity run out, the home or business owner is out

of electricity and does not have means of tapping into the utility company’s

power supply.

B. History of Wind Energy in the United States and Illinois

1. United States Wind Energy History

Wind energy began long before the modern day wind turbine that people

think of today. People harvested wind for energy as early as 900 years ago.30

Windmills emerged in rural America around 1860.31

These windmills were

used mainly for water-pumping.32

The difference between the windmills of

old and the wind turbines of today is that windmills turn wind into mechanical

energy while wind turbines turn wind into electrical energy.33

Rudimentary wind energy turbine systems first appeared in America

during the 1920s and lasted until the 1950s.34

They were utilized mainly in

rural America.35

Their primary purpose was to provide electrical power to

individual homes.36

Use of these turbines declined with the implementation of

the Rural Electrification Program, a New Deal program that aimed to provide

rural America with electricity through more traditional means, such as coal

power plants.37

It took the energy crisis of the late 1970s for wind energy to become a

24. Stephen Harland Butler, Headwinds to a Clean Energy Future: Nuisance Suits Against Wind Energy

Projects in the United States, 97 CALIF. L. REV. 1337, 1339 (2009).

25. CHIRAS, supra note 4, at 47–48.

26. Id. at 48.

27. Id.

28. Due to the fluctuations in energy provided, off-grid systems are usually independent wind turbine

operations that provide electrical power to one household. Id. at 52.

29. Id.

30. See id. at 1 (stating that historically “wind was used to grind grain and manufacture goods”).

31. Id.

32. Id.

33. Id.

34. Id. at 2.

35. Id.

36. Id.

37. Id.


popular alternative energy option.38

Because of this energy crisis, California

constructed the first commercial wind farms in the United States during the

early 1980s.39

Other states followed and American wind energy production

reached 1000 megawatts (“MW”) in 1985.40

California was the leading wind

energy producer through the 80s and 90s and eventually was eclipsed by Texas

in 2001.41

Wind energy development declined during the 1990s because oil and gas

prices tumbled, making the tax incentives to invest in alternative energy less

attractive.42

At the start of the new millennium, with the rise of oil and gas

prices and with government policies favoring alternative energy, wind energy

production started to increase.43

Total wind energy in America today is roughly

43,461 MWs per year.44

Wind energy now provides slightly more than 2% of

all the energy in America.45

The top five states for wind energy production are

Texas, Iowa, California, Minnesota, and Illinois.46

This development of wind energy in America has led lawmakers to push

for additional wind power.47

Politicians—and the government in general—

realize that the goal of wind energy should be to increase efficiency and

production from wind turbines. In 2009, the Committee on Science and

Technology in the United States House of Representatives stated that “there

are still many significant technical issues that need to be addressed before wind

38. Id. at 3.

39. Adam M. Dinnell & Adam J. Russ, The Legal Hurdles to Developing Wind Power as an Alternative

Energy Source in the United States: Creative and Comparative Solutions, 27 NW. J. INT’L L. & BUS. 535, 542

(2007).

40. Id.

41. Texas is the current state leader in wind energy production. Ronald H. Rosenberg, Making

Renewable Energy A Reality—Finding Ways to Site Wind Power Facilities, 32 WM. & MARY ENVTL. L. &

POL’Y REV. 635, 638 (2008).

42. CHIRAS, supra note 4, at 3.

43. See Rosenberg, supra note 41, at 637–38 (stating that wind energy development has greatly

increased over the last five years).

44. AM. WIND ENERGY ASS’N, AWEA THIRD QUARTER 2011 MARKET REPORT 1 (Oct. 2011), available

at http://www.awea.org/learnabout/publications/reports/upload/3Q-2011-AWEA-Market-Report-for-

Public.pdf [hereinafter THIRD QUARTER MARKET REPORT].

45. Peter Behr, Predicting Wind Power’s Growth—An Art That Needs More Science, N.Y. TIMES, Apr.

28, 2010, http://www.nytimes.com/cwire/2010/04/28/28climatewire-predicting-wind-powers-growth----an-art-

that-29171.html.

46. THIRD QUARTER MARKET REPORT, supra note 44, at 4.

47. In the 2010–2011 Congressional session, there were many bills introduced that dealt with wind

energy. See, e.g., Community Wind Act, S. 1741, 112th Cong. (2011), available at http://www.gpo.gov/

fdsys/pkg/BILLS-112s1741is/pdf/BILLS-112s1741is.pdf (“To amend the Internal Revenue Code of 1986 to

provide an investment tax credit for community wind projects having generation capacity of not more than 20

megawatts, and for other purposes.”); Incentivizing Offshore Wind Power Act, S. 1397, 112th Cong. (2011),

available at http://www.gpo.gov/fdsys/pkg/BILLS-112s1397is/pdf/BILLS-112s1397is.pdf (“To amend the

Internal Revenue Code of 1986 to provide for an investment tax credit related to the production of electricity

from offshore wind.”); Make it in America Act of 2011, H.R. 487, 112th Cong. (2011), available at

http://www.gpo.gov/fdsys/pkg/BILLS-112hr487ih/pdf/BILLS-112hr487ih.pdf (“To require 100 percent

domestic content in green technologies purchased by Federal agencies or by States with Federal funds and in

property eligible for the renewable energy production or investment tax credits.”); Wind Energy Research and

Development Act of 2011, H.R. 2782, 112th Cong. (2011), available at http://www.gpo.gov/fdsys/

pkg/BILLS-112hr2782ih/pdf/BILLS-112hr2782ih.pdf (“[P]roviding for a program of wind energy research,

development, and demonstration, and other purposes.”).


can serve as a large provider of baseload electricity in the United States.”48

To

address those concerns Representative Paul Tonko introduced the “Wind

Energy Research and Development Act of 2011” during the 2011–2012

Congressional Session, which would provide $1 billion from the federal

government over a five-year period to the Secretary of Energy to carry out a

program that would “improve the energy efficiency, reliability, and capacity of

wind turbines; optimize the design and adaptability of wind energy systems;

and reduce the cost of construction, generation, and maintenance of wind

energy systems.”49

The purpose of this bill is to meet the goal set out in the

report by the Department of Energy of 20% wind energy by 2030.50

In 2009,

the Department of Energy’s Wind Program received approximately only $50

million annually.51

Research and development for other types of alternative

energy receive at least triple that amount, and this bill would help narrow that

research and development gap for wind energy.52

2. Illinois Wind History

Illinois’ first wind farm was constructed in 2003.53

Since 2003, Illinois

has increased its wind energy production from 50 MW per year to 2,438 MW

per year.54

Illinois currently ranks fifth in the country in wind-generating

capacity and sixteenth in the country in wind-generating potential capacity.55

Northwest and north-central Illinois have the best locations for wind energy in

Illinois.56

A benefit that Illinois has over states such as the Dakotas or Texas is

that Illinois has an already developed transmission infrastructure (e.g. power

lines) which makes future development in Illinois more appealing. Due to this

infrastructure, one of the major costs—transportation of energy—is lower in

Illinois than in states that have better potential for wind energy.57

A key to Illinois’ future wind energy growth was the passage of the

“Illinois Power Agency Act” in 2007.58

This act created an agency with the

48. H.R. REP. NO. 111-248, at 7 (2009). Again, Tomko’s bill was reintroduced in 2011 so committee

meetings from 2009 on an identical bill are being used in discussing this bill.

49. The bill would distribute approximately $200 million annually. Id. at 3.

50. Id.

51. Id.

52. See id. at 14 (stating that nuclear energy receives over $960 million, coal $500 million, solar $168

million, and biomass $200 million annually in research and development).

53. Illinois Wind Facts, ILL. WIND ENERGY COAL., http://www.windforillinois.org/facts/ (last visited

Feb. 15, 2012).

54. CTR. FOR RENEWABLE ENERGY AT ILL. STATE UNIV., ECONOMIC IMPACT: WIND ENERGY

DEVELOPMENT IN ILLINOIS JUNE 2010 6 (2010), available at http://renewableenergy.illinoisstate.edu/

wind/publications/2010%20FINAL%20NEW%20Economic%20Impact%20Report.pdf (stating that Illinois

started with fifty MW of wind power in 2003); THIRD QUARTER MARKET REPORT, supra note 44, at 5

(showing how much wind energy is in Illinois as of the third quarter of 2011).

55. Wind-generating capacity is how much a state is actually producing and wind-generating potential

capacity is the maximum a state could produce. THIRD QUARTER MARKET REPORT, supra note 44, at 2.

56. See Resources & Transmission, ILL. WIND ENERGY ASS’N, http://www.windforillinois.org/wind-

resource/ (last visited Feb. 13, 2011) (providing a map of average wind speeds for Illinois).

57. Id.

58. Illinois Power Agency Act, 20 ILL. COMP. STAT. 3855/1-1 (2008). In addition, Illinois passed

legislation to allow counties to own wind turbine farms. This is another example of the Illinois government

embracing wind energy. See 55 ILL. COMP. STAT. 5/5-42000 (2011).


following goals:

A. Develop electricity procurement plans . . . at the lowest total cost over time. . . . B. Conduct competitive procurement processes to procure the supply resources identified in the procurement plan. . . . C. Develop electric generation and co-generation facilities that use indigenous coal or renewable resources” [and] . . . . D. Supply electricity from Agency’s facilities at cost to . . . municipal electric systems, governmental aggregators, or rural electric cooperatives in Illinois.

59

This statute also created a Renewable Portfolio Standard which set yearly

renewable energy production requirements that Illinois must meet.60

The

standard requires that 5% of all energy distributed be renewable energy by

2010, 10% by 2015, and 25% by 2025.61

Also, to the extent available, at least

75% of the renewable energy resources used to meet the above standards must

come from wind generation.62

Should companies not comply with the agency’s

requirements, the agency has the power to “establish and collect charges and

fees.”63

In 2011, Governor Quinn passed two legislative bills that could expand

Illinois wind energy. House Bill 1558 created the Lake Michigan Offshore

Wind Energy Council Act and the Lake Michigan Offshore Wind Energy

Council.64

This council will look at the feasibility of developing offshore

energy in Lake Michigan.65

The second act was House Bill 1487 which

created the Renewable Energy Production District Act.66

The act allows

county boards to designate their own renewable energy districts within county

lines that produce clean energy such as solar, wind, and biofuels.67

County

boards are then able to submit the district plans for renewable energy

production through a voter referendum.68

Illinois government is embracing alternative energy, specifically wind

energy. While it is promising to see the state embarking on this path, the goal

of reaching 20% wind energy by 2030 cost-effectively cannot be done solely

through government programs demanding that wind energy be used today and

in the future. Technological advancements and improvements in wind energy

are needed to improve cost-efficiency otherwise the programs are a poor

allocation of taxpayer dollars. These advancements and improvements will

help Illinois reach some of its lofty goals under the Illinois Power Agency Act

59. 20 ILL. COMP. STAT. 3855/1-5 (2008) (emphasis added).

60. Id. 3855/1-75 (2008).

61. Id.

62. Id.

63. Id. 3855/1-20(a)(24) (2008).

64. Lake Michigan Offshore Wind Energy Advisory Council Act, Public Act 97-266, 2011 Ill. Laws

266.

65. Meeting Notes, Lake Michigan Wind Energy Council Outline (Oct. 17, 2011), available at

http://www.dnr.illinois.gov/councils/LMOWEAC/Documents/LMOWEACMeetingNotes17OCT2011.pdf

This meeting laid out the visions and goals of the Lake Michigan Council.

66. Renewable Energy Production District Act, Public Act 97-265, 2011 Ill. Laws 265.

67. Id.

68. Id.


and bring America one step closer to having 20% wind energy by 2030.

III. ANALYSIS

A. Technological Requirements

The higher the altitude, the faster the wind.69

Accordingly, higher wind

turbines have faster spinning blades, causing more energy to be converted.70

Despite this knowledge, there will not be wind turbines taller than skyscrapers

anytime soon. Due to economics and technological constraints, building

towers over 100 meters in height is not preferred because it would be too

costly and difficult to (A) transport the towers on the highway, and (B) put

large construction cranes in rural locations to construct the turbines.71

For

America to reach the goal of 20% by 2030, there needs to be technological

improvements.72

Advancements in technology can lead to improvements in

three core areas: “reducing capital costs, increasing capacity factors, and

mitigating risk through enhanced system reliability.”73

Technological

developments will lead to cheaper construction, more energy captured per

turbine, and losing less energy obtained by wind turbines. This section will

discuss how technological improvements to the rotor, blades, active controls,

towers, and drivetrain will help propel wind energy into the future. It will also

discuss developing offshore wind turbines in Lake Michigan.

1. Rotor

Rotors capture the initial energy that is produced by the blades rotating

from the wind.74

Improving rotor efficiency and the amount of energy that the

rotor can capture will improve wind turbines’ energy production. There are no

current rotor design innovations in development, but researchers are starting to

“use better materials and innovative controls to build enlarged rotors that

sweep a greater area for the same or lower loads.”75

Two approaches are

currently being developed. The first approach uses the wind turbine blades

themselves to “attenuate both gravity and turbulence-driven loads.”76

The

second approach has “an active control that senses rotor loads and actively

69. Not only is the wind faster, it is also more consistent. ALEXANDER BOLONKIN, UTILIZATION OF

WIND ENERGY AT HIGH ALTITUDE 6 (2004), available at http://arxiv.org/pdf/physics/0701114.pdf.

70. See 20% BY 2030, supra note 6, at 26 (stating that wind velocity generally increases as altitude

increases).

71. Technologically, some of the improvements that can be made are not beneficial enough to justify the

increased research and development costs for the slight increased energy output that would arise. See id.

(discussing how it is advantageous for wind developers to stay within the limits of highway restrictions and

also mentions how wind blades, while increasing in efficiency presently, will eventually reach a point where

the cost to increase their size will outweigh the benefit of energy gained).

72. See generally 20% BY 2030, supra note 6, at 7–13 (providing an overview of what needs to be done

in America so that 20% of energy can be provided by wind energy by 2030).

73. Id. at 23.

74. Id. at 26 (describing how a rotor works).

75. Id. at 35.

76. Id.


suppresses the loads transferred from the rotor to the rest of the turbine

structure.”77

Another option is using carbon fabrics made out of lighter and

stronger material than the carbon fibers currently being used in rotors. This

will allow for higher blade loads and a reduction of rotor weight, both

necessary for wind turbine development.78

The technological improvements of wind turbine parts are interrelated—

improving one aspect of the turbine will likely lead to other improved aspects

of the turbine. For example, improving the rotors will allow for longer and

better blades to be used, which in turn will allow for turbines to be used at

lower wind levels, which will increase the production of wind turbines.

Current wind turbines extract roughly 50% of the energy in the wind stream,

improving the rotor could help increase that to 59%.79

2. Blades

Longer blades on larger rotors sweep a greater area which increases

energy capture.80

Increasing only blade length would not be practical because

a larger blade means a heavier blade, which creates greater structural loads for

the wind turbine and ultimately decreases production output.81

Rather, what is

needed for wind turbine development is to increase the length of the blade

while also making the blade lighter.82

The difficulty with this is that the

carbon fibers that are used in the blades are expensive and would not be cost-

effective until the payoff is maximized.83

Additionally, improving the design of the blade may increase efficiency.

“Flap-pitch” or “bend-twist” coupling, where the blade is built so that it

“allows the outer portion of the blade to twist as it bends,” is a blade design

currently in development.84

This design allows for reduced lift, which leads to

reduced fatigue loads.85

Implementing this design would increase the amount

of wind that the blades could capture, and ultimately the turbine could produce

more energy at lower elevations or in areas with weaker wind speeds.

77. Id.

78. R. Thresher & A. Laxson, Advanced Wind Technology: New Challenges for a New Century, 4

(Nat’l Renewable Energy Lab., conference paper No. NREL/CP-500-39537, June 2006), available at

http://www.nrel.gov/docs/fy06osti/39537.pdf.

79. 20% BY 2030, supra note 6, at 31.

80. Id. at 35.

81. This shows how technological advancements for wind turbines are interconnected. Improving just

the blades will do nothing in improving the efficiency of wind turbines. See id (describing future

improvements to turbine components).

82. Id.

83. Maximized payoff means that as things get produced on a greater scale, the individual costs of those

items go down. So while it may be extremely expensive to produce a small number of carbon fibered blades,

as production increases, the cost to produce the blades decreases and makes it a practical solution. See id at

35, 42 (describing the learning-curve effect of manufacturing wind turbine components).

84. Id. at 36.

85. Id.


3. Active Controls

Active controls command the rotor yaw, blade pitch, and variable-speed

rotors.86

Active controls are designed to reduce the cost of energy.87

Reducing

the cost of energy through active controls can be done in one of two ways:

increased energy capture or reduced mechanical loads.88

A way to increase

energy capture is “model referenced adaptive control.”89

In this process, the

controller adapts “itself to perform optimally despite rotor variability, blade

erosion and site-specific parameters.”90

The controls use “independent blade

pitch and generator torque . . . to reduce tower-top motion, power fluctuations,

asymmetric rotor loads, and . . . individual blade loads.”91

Another advancement in active controls has been an attempt to reduce

mechanical loads with a technique called “‘full-state feedback’ with

‘disturbance accommodating control (DAC)’ and periodic control.”92

In this

system, multiple turbine states are “fed back through a control loop and a DAC

controller with time-varying gains to decide what controls should be

activated.”93

This allows each blade to take into “account turbine parameters

that vary during a rotor cycle such as yaw inertia and gravity loads.94

It is

believed that such a system will show significant reduction in turbine rotor,

shaft, and tower loads.”95

Improving the active controls does not require a new innovation; small

improvements that show a reliable application of the above techniques will

lead to improved wind turbines.

4. Towers

There has been little improvement to towers due to their basic

components.96

Tower design will improve once there are economically

beneficial impacts of installing the rotor at a higher height and the cost of steel

becomes too expensive.97

Having taller towers for rotors matters because

every 10% increase in wind speed produces a 33% increase in available

power.98

A drawback to increasing tower height is that high transportation

86. SCOTT J. JOHNSON ET. AL., ACTIVE LOAD CONTROL TECHNIQUES FOR WIND TURBINES 15 (2008),

available at http://windpower.sandia.gov/other/084809.pdf.

87. Thresher & Laxson, supra note 78, at 7.

88. Id.

89. Id.

90. Id.

91. 20% BY 2030, supra note 6, at 37.

92. Thresher & Laxson, supra note 78, at 7.

93. Id.

94. Id.

95. Id.

96. Towers have no technological parts. Instead, they are just big steel shafts. 20% BY 2030, supra note

6, at 37. The improvements that can be done to these shafts are extremely limited. Id. Lighter and stronger

materials are the only improvements. Id.

97. Id.

98. Id.


costs would render the benefits useless.99

Breaking the tower into smaller

pieces means that there can be thinner walls,100

but this requires on-site

assembly which will raise the labor costs, again minimizing or negating

increased height benefits.101

The key to tower growth is to reduce the weight at the top of the tower,

where the rotor box is located. This would permit for a longer, more slender,

structure that would increase available wind power.102

Tower development is

not as important as other technological developments and should only be

pursued if developments to reduce the weight at the top of towers are also

pursued.

5. Drivetrain

The drivetrain consists of the gearbox, generator rotor, and the power

conversion.103

Individually, these items only cause small energy losses

compared to the components previously discussed; however, when added

together, they can cause significant energy losses.104

Technological advances

in the drivetrain can lead to improved efficiency during low power

generation.105

This will raise the production capacity of wind turbines and

reduce costs.106

Improvements to gearboxes’ reliability can help defray costs because

whole gearbox replacement is expensive.107

Three ways to improve reliability

of the gearbox include: (1) having a direct-drive power train that eliminates the

need for a gearbox altogether; (2) reducing the number of stages in the gearbox

from three to two or one which enhances reliability by reducing the number of

moving parts; or (3) the gearbox topology can be improved by having a

multiple-drive-path gearbox that divides mechanical power among four

generators, which would radically decrease individual gearbox component

loads and lead to improved reliability.108

Using rare-earth permanent magnets instead of wound rotors would

improve the generator rotor.109

“High energy density eliminates much of the

weight associated with copper windings, eliminates problems associated with

99. Id. (stating that transportation costs would increase with larger towers because it would be more

difficult to move the towers on the interstate highways).

100. Basic physics says that the longer each piece of the turbine is, the thicker it has to be because the

more pressure (both wind and gravity) the section experiences. Shorter pieces spread out the pressure amongst

themselves so they can be thinner and lighter. See id.

101. Id.

102. Id.

103. Id. at 38.

104. See generally id. (“Parasitic losses in generator windings, power electronics, gears and bearings, and

other electrical devices are individually quite small. When summed over the entire system, however, these

losses add up to significant numbers.”).

105. Id.

106. Id.

107. Id.

108. Id.

109. Id.


insulation degradation and shorting, and reduces electrical losses.”110

Some

drawbacks of the rare-earth magnets are that they “cannot be subjected to

elevated temperatures . . . without permanently degrading magnetic field

strength . . . . The availability of rare-earth permanent magnets is a . . . concern

because key raw materials are not available in significant quantities within the

United States.”111

Lastly, improving power conversion would elevate the performance and

reliability levels of wind turbines. Power conversion improvement “could

reduce the cost, weight, and volume of turbine electrical components as well as

reduce electrical losses.”112

For example, using silicon carbide devices “could

allow operation at higher temperature and higher frequency, while improving

reliability, lowering cost, or both.”113

Another option is new circuit topologies

which “could furnish better control of power quality, enable higher voltages to

be used, and increase overall converter efficiency.”114

6. Offshore Wind Development

There has been substantial scholarship written on the development of

offshore wind in America and Europe.115

Offshore wind can play a major role

in helping America reach its goal of 20% by 2030 because the strongest and

most consistent winds are above large bodies of water.116

Nationally, offshore

wind energy development is important because the 28 states that have a coastal

boundary use 78% of the nation’s electricity and “only 6 [of those states] have

a sufficient land-based wind energy resource to meet more than 20% of their

electric requirements through wind power.”117

Offshore wind development is

important to Illinois because of Lake Michigan’s proximity to Chicago and the

massive energy demands of the greater Chicago area.

The current technology for offshore wind turbines is extremely similar to

land-based turbines except offshore is adapted to the marine environment.118

Offshore wind turbines are more expensive than land turbines with the

majority of the costs being “foundations, electrical grids, O&M [operation and

management], and installation and staging costs.”119

The startup cost of

offshore development is estimated to be at least 50% greater than onshore.120

110. Id.

111. Id.

112. Id.

113. Id.

114. Id.

115. See generally Ed Feo & Josh Ludmir, Challenges in the Development and Financing of Offshore

Wind Energy, 14 ROGER WILLIAMS U. L. REV. 672 (2009); Erica Schroeder, Turning Offshore Wind On, 98

CALIF. L. REV. 1631 (2010); Nathanael D. Hartland, Comment, The Wind and the Waves: Regulatory

Uncertainty and Offshore Wind Power in the United States and United Kingdom, 24 U. PA. J. INT’L ECON. L.

691 (2003).

116. Schroeder, supra, note 115, 1639–40 (stating how offshore wind tends to be stronger and more

consistent).

117. 20% BY 2030, supra note 6, at 48.

118. Id. at 49.

119. Id. at 50.

120. Schroeder, supra note 115, at 1641.


A technological improvement that would help offshore wind development

would be to increase the size of offshore turbines. Europe is introducing wind

turbines upwards of 150 meters in size, 50% larger than the largest turbines on

land.121

If building larger turbines is feasible, then the technological

improvements discussed earlier in this Note will have to be improved as well.

Additionally, larger turbines are more appropriate in offshore developments

because there are less people affected by the turbines’ installation, and thus

many of the concerns of wind turbines would be alleviated—i.e., their size and

nuisance potential—would be of little consequence in a large body of water.

B. Benefits

1. Job Creation

Seventeen new jobs are created from every new MW of power developed

in the state of Illinois.122

Wind energy has already created thousands of jobs in

Illinois.123

These jobs are mainly at small to medium-sized companies.124

The

number of direct jobs created (people who work directly on wind turbine

construction, development, or maintenance) has been 1,583 in Illinois.125

Categorically, there were 1,473 construction and 110 long term operational

jobs created.126

The payroll of these jobs amounted to over $500 million

during construction periods.127

Since 2003, when the first wind turbines were

installed in Illinois, there have been 494 permanent jobs created in rural Illinois

from wind energy, which is important because rural Illinois has had a harder

time recovering from the recent economic downturn than major cities.128

Second, jobs can be created by the “multiplier effect”—increases in

property tax which occur when wind turbines are installed.129

From 2003

through 2009, over $18 million in additional taxes were raised because of the

1,847.76 MW of wind energy that was generated in the state.130

This money

can be added into a municipality’s general fund and provide for many benefits

including more teachers for a district, more city workers, or more resources to

help people find employment. Since 2003, 8,879 jobs have been created

through the additional property taxes levied and the multiplier effect.131

121. 20% BY 2030, supra note 6, at 50.

122. ENVTL. LAW & POLICY CTR, THE WIND ENERGY SUPPLY CHAIN IN ILLINOIS 1 (2010), available at

http://elpc.org/wp-content/uploads/2010/11/ELPC_Wind_Energy_Supply_Chain_in_IL_Brochure-2010.pdf.

123. CTR. FOR RENEWABLE ENERGY AT ILL. STATE UNIV., supra note 54, at 23.

124. ENVITL. LAW & POLICY CTR., supra note 122, at 1.

125. CTR. FOR RENEWABLE ENERGY AT ILL. STATE UNIV., supra note 54, at 23.

126. Id. at 24.

127. Id. at 23.

128. Id.

129. Id. (explaining that a multiplier effect occurs when jobs are created when there is increased revenue,

which in turn creates more jobs).

130. Id.

131. Id. at 24.


2. Environmental Benefits

Americans have strong opinions about global warming. Probably the

most famous example is Al Gore’s documentary “An Inconvenient Truth,”

which proposed that humans are one cause behind the recent rise in global

temperatures.132

Conversely, there are more Americans discrediting the truth

behind man-made global warming.133

Even if the doubters are correct and

man-made global warming is overblown, reducing carbon emissions and

greenhouse gases and embracing alternative renewable energy will have

independent benefits: fossil fuels are a finite resource and America will have to

come up with alternative sources of energy in order to meet its energy demands

in the future.134

Pursuing alternative energy sources before finite sources like

oil, natural gas, and coal run out is a common sense policy goal.

40% of the carbon dioxide (CO2) produced in America comes from the

electric power sector.135

“Electricity generation is the largest industrial source

of air pollution in the United States.”136

Should America reach the goal of

20% by 2030, America “could avoid 825 million tons of CO2 annually by

2030, cutting expected electric sector emissions by 20–25%. This is the

equivalent to taking 140 million vehicles off the road.”137

There are also long-term benefits to wind energy. Should the United

States reach the goal of 20% by 2030, 50% of the electricity generated from

natural gas and 18% of electricity from coal would be displaced by wind

energy which would require eighty less coal plants to be built, and also lower

the price of electricity.138

Increasing wind to 20% would also level out electric

emissions, even when demand is increasing drastically due to the rising

population.139

These long and short-term environmental impacts will help

keep the environment clean and reduce America’s dependence on fossil fuels.

C. Problems

Wind energy and wind development are not universally approved.140

This Section will focus on issues that may prevent the expansion of wind

energy in Illinois. First, this Section will discuss whether a wind turbine claim

constitutes a nuisance in Illinois. Second, this Section will discuss the zoning

132. An Inconvenient Truth, CLIMATE CRISIS, http://www.climatecrisis.net/an_inconvenient_truth/

about_the_film.php (last visited Feb. 13, 2012).

133. Frank Newport, Americans’ Global Warming Concerns Continue to Drop, GALLUP (Mar. 11, 2010),

http://www.gallup.com/poll/126560/americans-global-warming-concerns-continue-drop.aspx (providing data

that many Americans believe global warming to be exaggerated).

134. See Appenzeller, supra note 6 (noting the problems of finite fossil fuels).

135. AM. WIND ENERGY ASS’N, WIND POWER AND CLIMATE CHANGE 1 (2006) available at

http://www.awea.org/learnabout/publications/loader.cfm?csModule=security/getfile&PageID=4136.

136. Id.

137. Id.

138. Id. at 2.

139. Id.

140. See generally NAT’L WIND WATCH, http://www.wind-watch.org (last visited Feb. 13, 2012)

(providing a general overview of the negative effect that wind energy might have on people throughout the

world).


regulations and requirements related to wind turbines.

1. Nuisance

There are two nuisance claims in Illinois: public nuisance and private

nuisance.141

A public nuisance is “the doing of or the failure to do something

that injuriously affects the safety, health or morals of the public, or works some

substantial annoyance, inconvenience or injury to the public.”142

Public

nuisances are things that affect a whole community—e.g., a prostitution

house,143

free-roaming dangerous dogs,144

or air and water pollution.145

A

public nuisance claim for wind turbines would likely fail because wind

turbines do not have negative effects on the whole public. The alleged safety

and health effects of wind turbines are isolated to the area where the wind

turbine is located.146

Unlike a prostitution house, there is no moral injury to

the installation of wind turbines. Claims that wind turbines are a nuisance

should be analyzed under the private nuisance standard.

While the difference between private and public nuisance is not always

clear, most cases brought against wind companies have stated that wind

turbines are a private nuisance.147

No single definition of private nuisance is

used by Illinois courts but all cases require “a substantial invasion of another’s

interest in the use and enjoyment of his or her land. The invasions must be:

substantial, either intentional or negligent, and unreasonable.”148

Things that

have been claimed as a private nuisance include property damage,149

personal

injury,150

interference with the use and enjoyment of property,151

psychological

or speculative damage,152

aesthetic damage,153

and natural conditions.154

141. See Wilsonville v. SCA Services, Inc., 426 N.E.2d 824, 834 (Ill. 1981) (providing Professor

Prosser’s definitions of public and private nuisance).

142. Id.

143. Lewdness Public Nuisance Act, 740 ILL. COMP. STAT. 105/1–105/11 (2008).

144. 510 ILL. COMP. STAT. 5/15 (2008).

145. Illinois Environmental Protection Act, 415 ILL. COMP. STAT. 5/1–5/7.7 (2008).

146. Compare this to the examples provided in footnotes 143–45. A wind turbine is isolated to one

specific area. Any health effects would be limited to people who could see or hear the wind turbine or its

shadow. Dangerous dogs or air and water pollution affects a community at large; however, a wind turbine

affects the people in direct proximity to it.

147. See generally Rassier v. Houim, 488 N.W.2d 635, 636 (N.D. 1992) (discussing plaintiff’s private

nuisance claim that noise from a wind generator interfered with plaintiff’s enjoyment of land); Rankin v. FPL

Energy, LLC, 266 S.W.3d 506, 508 (Tex. App. 2008) (discussing plaintiffs private nuisance claim due to the

unappealing view that the wind turbine gave the plaintiff); Burch v. Nedpower Mount Storm, LLC, 647 S.E.2d

879, 886 (W. Va. 2007) (discussing how plaintiff’s may bring a nuisance claim against a wind turbine

company based on West Virginia nuisance law).

148. In re Chicago Flood Litig., 680 N.E.2d 265, 277 (Ill. 1997).

149. See Laflin & Rand Powder Co. v. Tearney, 23 N.E. 389, 391 (Ill. 1895) (finding that physical

damage to plaintiff’s land caused by defendant’s actions is a nuisance).

150. See O’Connor v. Aluminum Ore Co., 224 Ill. App. 613, 616 (Ill. App. Ct. 1922) (finding that when

acids, gases, smoke, etc., personally injured someone, that person could file a nuisance claim).

151. See Woods v. Khan, 420 N.E.2d 1028, 1031 (Ill. App. Ct. 1981) (finding that the smell of a poultry

farm interfered with plaintiff’s ability to use and enjoy their homes).

152. See Rosehill Cemetery Co. v. City of Chicago, 185 N.E. 170, 177 (Ill. 1933) (holding that

psychological damage from the building of a cemetery was not enough to make a nuisance claim).

153. See Carroll v. Hurst, 431 N.E.2d 1344, 1349 (Ill. App. Ct. 1982) (finding that landowners have no

rights in a pleasing view of their neighbors land).


Wind turbine nuisance claims would likely fall under interference with

use and enjoyment of property, psychological or speculative damage, or

aesthetic damage. Because Illinois courts have ruled that psychological or

speculative damage and aesthetic damage cannot be nuisance claims,155

only

interference with use and enjoyment of property can be brought as a claim in

Illinois courts.

Illinois courts have not decided a case where a party has made a nuisance

claim for a wind turbine interfering with their use and enjoyment of the

property. This Section will analyze jurisdictions that have decided wind

turbine nuisance cases and Illinois cases that have ruled on interference with

the use and enjoyment of property. It will then apply those nuisance principles

to wind turbine nuisance claims in Illinois.

No jurisdiction has ever held that wind turbines are a nuisance. In

Rassier v. Houim, the North Dakota Supreme Court found that a wind

generator built on a residential area was not a private nuisance.156

The North

Dakota court used the same nuisance standard as Illinois: “a nuisance claim is

the absolute duty not to act in a way which unreasonably interferes with the

other persons’ use and enjoyment of their property.”157

The plaintiff argued

that the wind generator was a substantial interference because it emitted fifty to

sixty-nine decibels of noise, and also because of safety concerns of ice being

thrown off the wind turbine’s blades.158

The defendant argued that no other

neighbors complained, the plaintiff purchased the property after the wind

generator was installed, the blades had safety features for ice, and the

defendant offered to teach the plaintiff how to turn off the wind generator

when the noise bothered him.159

The court found that the trial court did not err

in finding that no nuisance occurred because, under the circumstances,

operating the turbine was not an unreasonable interference.160

In Burch v. Nedpower Mount Storm, LLC, the West Virginia Supreme

Court reversed and remanded an immediate dismissal of a nuisance claim

against a wind energy generator by the lower court.161

The plaintiffs argued

that the wind turbines would create a private nuisance because of the noise, the

“flicker” or “strobe” health effects, and physical danger from ice, broken

blades, and collapsing towers.162

West Virginia uses a similar nuisance

standard as North Dakota and Illinois.163

The court stated its unreasonableness

standard was “when the gravity of the harm outweighs the social value of the

154. See Merriam v. McConnell, 175 N.E.2d 293, 297 (Ill. App. Ct. 1961) (finding that natural conditions

of landowner’s property cannot constitute a nuisance).

155. See cases cited supra notes 151–53.

156. Rassier v. Houim, 488 N.W.2d 635, 636 (N.D. 1992).

157. Id. at 637.

158. For comparison, a microwave emits fifty decibels and a refrigerator emits forty decibels. Id. at 638.

159. Id.

160. Id. at 639.

161. Burch v. Nedpower Mount Storm, LLC, 647 S.E.2d 879, 884 (W. Va. 2007).

162. Id. at 885.

163. See id. at 886 (stating that a “nuisance is the unreasonable, unusual, or unnatural use of one’s

property so that it substantially impairs the right of another to peacefully enjoy his or her property”).


activity alleged to cause the harm.”164

The court found that a nuisance

complaint based on noise, unsightliness, and diminishment of property value

may be abated by the lower court.165

The aftermath of this decision has not

come to fruition, but it has the potential to greatly hinder wind energy

development because it puts even more power into the hands of individual

land-owners to thwart wind energy development.166

In Rankin v. FPL Energy, LLC, the Texas Court of Appeals held that an

emotional response to loss of a view due to wind generators is insufficient to

establish a cause of action for nuisance.167

“Texas law defines nuisance as a

condition that substantially interferes with the use and enjoyment of land by

causing unreasonable discomfort or annoyance to persons of ordinary

sensibilities.”168

The plaintiffs argued that just the sight of the wind turbine

was not the sole cause for the nuisance,169

but that blinking lights, shadow

flicker from the blades in the early morning, and the turbines’ operational

noises also constituted the nuisance.170

The court found that based on the

affidavits presented by the plaintiffs, the plaintiff’s claims for nuisance were

based on their emotional response to the aesthetic view.171

Lastly, the court

addressed how the wind farm was a lawful project and thus cannot constitute a

nuisance per se and must be analyzed under a nuisance-in-fact standard.172

The court, while sympathetic to the plaintiff’s claim, found that because

“Texas law does not provide a nuisance action for aesthetical impact” no

nuisance claim could be brought.173

These court decisions from other states matter because how Illinois

defines nuisances regarding interference with use and enjoyment of property is

persuasive in deciding whether wind turbines are nuisances. Illinois requires a

substantial interference with a protected interest for a nuisance claim to

succeed.174

The law requires a reasonable person test when deciding the

substantial interference.175

Things like odor and actual physical invasion are

more likely to constitute a substantial interference than aesthetics and noise.176

164. Id. at 887.

165. Id. at 891–92.

166. This author believes that land-owners or private companies will bring nuisance claims just to stop

wind energy development when the landowners have not been personally injured. Proving things like “noise”

and “unsightliness” are subjective standards that a wind energy company would have a difficult task of

refuting.

167. Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 513 (Tex. App. 2008).

168. Id. at 509 (internal quotation marks omitted).

169. Id. at 510.

170. Id.

171. Id. at 511.

172. See id. at 511 n.7 (citing Freedman v. Briarcroft Prop. Owners, Inc., 776 S.W.2d 212, 216 (Tex. App

1989), for the definition of a nuisance per se as “an act, occupation, or structure that is a nuisance at all times,

under any circumstances, and in any location . . . [and a] nuisance in fact is an act, occupation, or structure that

becomes a nuisance by reason of its circumstances or surroundings”).

173. Id. at 513.

174. See Cooper v. Randall, 59 Ill. 317, 324–325 (Ill. 1871) (declaring that the injury must be “real”).

175. Wente v. Commonwealth Fule Co., 83 N.E. 1049, 1052 (Ill. 1908).

176. The list for substantial interference contains dust, smoke, odors from a dog kennel, noise from an

amusement park, and flies from a poultry farm. Unpleasant views, occasional odors, and noise from a root

beer stand were not enough to constitute a nuisance. See 1–20 ILL. TORT LAW Nuisance § 20.03, n.46–n.56


The best argument for a wind turbine nuisance claim under Illinois law

comes from Off v. Exposition Coaster, Inc.177

In Off, the Illinois Supreme

Court found that the noise from an amusement park constituted a nuisance.178

The plaintiffs brought a nuisance claim on noise, stating that the noise sounded

like an electric train, and that they could hear bullets hitting metal and rifles

being fired.179

The noise was so loud that “conversation in . . . [the] back yard

had to be in a loud tone of voice.”180

Plaintiff also stated that he could not

sleep due to the noise and had to go into town to get a hotel room to sleep.181

Lights from the amusement park also posed problems and the shades had to be

drawn.182

The court held that the coming and going of cars and the noise and

lights were at such a level as to “disturb the peace and quiet of complainants”

and constituted a nuisance.183

Predicting whether Illinois courts will find that wind turbines produce the

level of substantial interference seen in Off is impossible. Case law in

secondary jurisdictions shows that wind turbines do not create a substantial

interference into one’s private use of their property to constitute a nuisance. In

Illinois, wind turbines would be analyzed under a nuisance-in-fact standard and

not nuisance per se, which makes it harder to classify them as a nuisance.184

In

Off, there were much louder noises and lights than wind turbines produce.

Because the interference that wind turbines cause is minimal, they will likely

not be a nuisance in Illinois.

2. Zoning

Wind energy is generally accepted by the public.185

But many people do

not want wind turbines placed in their neighborhood.186

This view will likely

lead to increased legislation because the state will need to address wind turbine

property issues being raised by individual land owners. One way to regulate

wind is through zoning laws.

Zoning laws are usually enacted by a county zoning board. Zoning is the

idea that “the right to improve property [by an individual land owner] is

subject to the reasonable exercise of state authority, including the enforcement

(LEXIS 2011) (listing what Illinois courts consider to be a substantial interference and listing what the courts

regard as not being a substantial interference).

177. Off v. Exposition Coaster, Inc., 167 N.E. 782, 785 (Ill. 1929).

178. Id.

179. Id. at 784.

180. Id.

181. Id.

182. Id.

183. Id. at 786.

184. Wind turbines are legal in Illinois, so they must be classified as a nuisance-in-fact due to their

surroundings. See Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 513 (Tex. App. 2008) (addressing the

difference between nuisance per se and nuisance-in-fact).

185. See 20% BY 2030, supra note 6, at 116 (stating that 80% of Americans prefer wind energy

expansion).

186. See generally Susan Lorde Martin, Wind Farms and NIMBYS: Generating Conflict, Reducing

Litigation, 20 FORDHAM ENVTL. L. REV. 427, 442–43 (2010).


of valid zoning and land-use restrictions.”187

A common requirement for wind

companies is to provide the county board with an environmental impact

statement that describes the effect that a wind farm or wind turbines will have

on the habitat.188

Impacts that zoning boards consider before making a

decision on whether to approve the wind turbine include: noise,189

environmental impact,190

land value,191

and visual impacts.192

Zoning and

siting requirements of wind turbines are important issues in determining how

wind turbines are used in Illinois.193

A key debate in counties is what setback requirements should apply to

wind turbines.194

Setback requirements are how far away turbines must be

from buildings or property lines. Both wind turbine proponents and opponents

understand that setback requirements are necessary, the debate is on what

distance the setback should be. Opponents of wind want setbacks of up to five

kilometers, a restriction which would effectively end wind development in

America.195

Proponents say that a setback of 1.1–1.5 times the fall distance—

turbine height to tip of the blade—is reasonable.196

There is no state law on

wind turbine setbacks; each county determines its own setback requirements.

Current Illinois law is sparse on direct statutes regulating wind turbines.

Illinois has a statute that puts individual state counties in charge of wind farm

zoning requirements. 55 ILCS 5/5-12020 states:

A county may establish standards for wind farms and electric-generating wind devices. The standards may include, without limitation, the height of the devices and the number of devices that may be located within a geographic area. A county may also regulate the siting of wind farms and electric-generating wind devices in unincorporated areas of the county outside of the zoning jurisdiction of a municipality and the 1.5 mile radius surrounding the

187. 83 AM. JUR. 2D Zoning § 1 (2003).

188. See 20% BY 2030, supra note 6, at 106.

189. See id. at 117 (describing how wind turbines make between thirty-five and forty-five decibels of

sound at 350 meters, which is slightly louder than a quiet bedroom).

190. The main environmental risk is bird death by the wind turbines. Wind turbines account for less than

one bird death per 100,000 birds that die by artificial means every year. See id. at 110–14. This number would

obviously grow as more wind turbines were installed. The key thing to remember is the risk benefit analysis

that comes from installing wind turbines.

191. See id. at 118 (stating that there has not been a correlation between wind turbines and decreases in

property value, but more research is needed).

192. This list is by no means exhaustive, each board has its own way of handling wind turbine requests

and there is no standard form that any board follows. See id. at 116–18 (stating that the key to any wind

development plan is discourse between citizens and the government). The FAA also requires that it approve

where wind turbines are placed. See 14 C.F.R. § 77.9 (2010).

193. Siting requirements are restrictions that the government places on a landowner to put an object, like

a wind turbine, on his or her land. An example of a siting requirement would be a federal regulation that

requires individuals who construct an object that is over 200 feet above ground level or if it is within so many

feet of an airport or heliport must notify the administrator of the FAA. See 14 C.F.R. § 77.9.

194. See e.g. Paul Gipe, Public Safety and Setbacks, WIND-WORKS, http://wind-works.org/

LargeTurbines/PublicSafetyandSetbacks.html (last visited Feb. 13, 2011).

195. Safe Setbacks: How Far Should Wind Turbines Be From Homes, KIRBY MOUNTAIN (July 30, 2008),

http://kirbymtn.blogspot.com/2008/07/safe-setbacks-how-far-should-wind.html.

196. Gary Seifert, Wind P&Z Considerations, Presentation for Idaho National Laboratory, at slide 13

(2010), available at http://idahoapa.org/wp-content/uploads/2011/09/Wind-Planning-and-Zoning-2010.pdf.


zoning jurisdiction of a municipality.197

Counties have taken different measures to regulate wind energy. Coles

County passed an ordinance that requires a permit, a setback requirement of

1,000 feet from any residences, and safety regulations.198

At least four other

counties in Illinois have set up siting policies for wind turbines.199

A problem that may arise for wind development in Illinois is an

exemption from zoning restrictions that Illinois statutes have carved out for

agricultural uses. 55 ILCS 5/5-12001 states that the power to regulate and

restrict lands “shall not be exercised . . . so as to impose regulations, eliminate

uses, buildings, or structures, or require permits with respect to land used for

agricultural purposes . . . when such agricultural purposes constitute the

principal activity on the land.”200

This exemption for agricultural purposes

could allow farmers to place wind turbines on their property in violation of

wind turbine ordinances if the turbine is deemed for agricultural purposes.

This is unlikely to happen because the wind turbine would not be classified as

an “agricultural purpose.”

Second, a farmer might be able to sabotage the installation of wind

turbines by using the agricultural exemption. A farmer could build something

that has a setback restriction, like a restricted landing area, right on the border

of his property, which could thwart any wind turbine development occurring

on neighboring lands.201

The farmer must show that the restricted landing area

is being used only for agricultural purposes. How a court interprets

“agricultural use” will determine whether these exemptions can override

county zoning regulations.

All zoning issues are a balancing act for county zoning boards.

Increasing regulation on one set of activities will undoubtedly affect another

area of interest. This Note could continue to provide examples of zoning

regulations that may affect wind turbines in Illinois, but the examples would

continue indefinitely. Ultimately, zoning boards and the legislature can

encourage or stifle wind energy development through zoning regulations.

Zoning regulations should err on the side of flexibility and inclusion toward

wind energy development.

197. 55 ILL. COMP. STAT. 5/5-12020 (2010).

198. These are just a few of the many regulations that Coles County placed on wind turbines. For a full

list, see COLES CNTY., ILL., ORDINANCE GOVERNING WIND ENERGY CONVERSION SYSTEMS IN THE

UNINCORPORATED AREAS OF COLES COUNTY, ILLINOIS (2008), available at http://www.ilcounty.org/

news/images/ ColesCountyWindEnergyConservationSystemOrdinance.pdf.

199. See Wind Powering America: Illinois Wind Activities, U.S. DEP’T OF ENERGY, http://

www.windpoweringamerica.gov/astate_template.asp?stateab=il (last visited Feb. 27, 2012) (showing that

Mason, Piatt, Vermillion, and Winnebago counties all have siting policies). See also F. OTERI, AN OVERVIEW

OF EXISTING WIND ENERGY ORDINANCES 5–8 (2008), available at http://www.nrel.gov/docs/

fy09osti/44439.pdf.

200. 55 ILL. COMP. STAT. 5/5-12001 (2010).

201. A restricted landing area is any area of land, water, or both that is used, or is made available, for the

landing and takeoff of aircraft that is intended for private use. See generally S. 0149, 97th Gen. Assemb. (Ill.

2011), available at http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=84&GA=

97&DocTypeId=SB&DocNum=0149&GAID=11&LegID=54943&SpecSess=&Session=.


IV. RECOMMENDATION

A. The Federal Government Must Promote Wind Energy

The demand for energy is increasing everyday as America’s population

continues to grow. America needs to start transitioning toward new sources of

energy, and the federal government needs to help assist in that transition before

fossil fuels run out. The federal government is doing that by providing many

financial and tax incentives to companies and individuals to invest in green

technology, including wind energy.202

The bill introduced by Representative Tonko should be enacted because

federal money for wind energy development lags behind other alternative

energy sources. This is a problem because the efficiency of wind turbine

energy capture needs to be improved and one way to spur development is

federal investment. Today’s turbines only capture around 50% of the energy in

wind.203

With the help of research and development money from the federal

government, technological improvements can help raise that percentage.

Investing in wind energy will provide jobs for Americans and help create an

American industry that has the ability to grow for years.

Opponents of wind energy claim that wind energy is a government

subsidized fraud and that wind energy cannot pay for itself.204

Opponents

point to the plethora of tax incentives and programs available for wind

development as an indication that wind energy cannot sustain itself.205

In

reality, all energy sources receive subsidies from the government.206

Coal, oil,

and natural gas received $500 billion in subsidies from 1950 to 1977 and more

subsidy money is going toward fossil fuels today than to renewable energy.207

President Barack Obama stated this point emphatically in his 2012 State of the

Union:

We’ve subsidized oil companies for a century. That’s long enough. It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising. Pass clean energy tax credits. Create these jobs.

208

202. See Federal Incentives/Policies for Renewables & Efficiency, DATABASE OF STATE INCENTIVES FOR

RENEWABLES AND EFFICIENCY, http://www.dsireusa.org/incentives/index.cfm?state=us&re=1&EE=1 (last

visited Feb. 27, 2012) (providing a list of federal programs that encourage green technology).

203. 20% BY 2030, supra note 6, at 31.

204. Eric Bibler, Editorial: Wind Energy is Government Subsidized Fraud, WIND TURBINE SYNDROME

(Aug. 29, 2010), http://www.windturbinesyndrome.com/news/2010/editorial-wind-energy-is-a-government-

subsidized-fraud/ (stating that wind energy is not efficient and the government should look into nuclear

energy).

205. Wind Power, N.Y. TIMES (Jan. 27, 2012), http://topics.nytimes.com/top/news/business/energy-

environment/wind-power/index.html.

206. AM. WIND ENERGY ASS’N, U.S. ENERGY SUBSIDIES 1 (May 2010), available at

http://www.awea.org/learnabout/publications/loader.cfm?csModule=security/getfile&PageID=4131.

207. See id. (stating that $13.7 billion of tax expenditures is provided to fossil fuels and $2.8 billion is

provided to renewables).

208. President Barack Obama, State of the Union (Jan. 24, 2012) (transcript available at

http://news.nationalpost.com/2012/01/24/state-of-the-union-address-full-text/).


The costs to extract fossil fuels (both environmentally and economically)

will continue to rise and a transition to other forms of energy is inevitable. The

federal government should invest in wind energy because it will help provide

jobs, keep Americans healthier, and keep the planet healthier.

B. Illinois Must Continue Its Path Toward Renewable Energy

The passage of the “Illinois Power Agency Act” has put Illinois in a

position to be a leading state in renewable energy. Illinois’ goal of having 25%

of its energy coming from renewable sources is right in line with the

Department of Energy’s goal of 20% by 2030. Illinois is continuing down the

right path by creating the Lake Michigan Council and the Renewable Energy

Production District Act.

Reaching this goal can be accomplished through a partnership between

private energy companies and government. Currently, it is very difficult for

developers to obtain financing to invest in alternative energy.209

The Illinois

legislature has eased that burden by adding renewable energy projects to a list

of “developments eligible for assistance through the Illinois Finance Authority

(IFA), which provides expert, hands-on support to help businesses get the

capital it needs for growth.”210

This will help provide loan guarantees to

renewable energy companies.211

Illinois has also extended the special valuation procedures for wind

energy devices to apply through 2016.212

The valuation is “determined by

subtracting the allowance for physical depreciation from the trended real

property cost basis. Functional . . . and external obsolescence may further

reduce the fair cash value of the wind energy device.”213

This statute lowers

the property tax burden on lands that have wind turbines.

The Illinois state government should not regulate wind turbines because

the needs and demands of counties are different throughout the state. Southern

Illinois has vastly different geographic characteristics than Northern Illinois,

and creating statewide regulations might hinder creativity and development in

certain regions of the state. Keeping regulatory power at the county level will

provide the best results for wind companies and the citizens of Illinois because

the two groups will be able to work together. The state should encourage

county zoning boards to approve wind energy programs, but it is understood

there is a balancing act that zoning boards must do with every issue. Right

now, Illinois is putting the power in the hands of the counties and should

continue this practice.

209. Marnin Lebovits, Illinois Green Energy Finance Initiative, RENEWEABLE ENERGY WORLD (Mar. 2,

2010), http://www.renewableenergyworld.com/rea/news/article/2010/03/illinois-green-energy-finance-

initiative (stating that “most recent transactions include loan terms of only five or seven years, with a twenty

year amortization period, generating significant refinance risk in most cases”).

210. Id.

211. Id.

212. 35 ILL. COMP. STAT. 200/10-610 (2010).

213. The depreciation of wind turbines over time is the tax break that is being advanced by this statute.

Id. § 10-605.


Opponents may argue that because of the current economic downturn the

Illinois government is not in a position to finance alternative energy

development.214

In these economic times, Illinois needs to decide where to

invest money and wind energy has been proven to provide jobs to local

residents, especially in rural counties. Wind energy also provides increased tax

revenue which will help local governments fund necessary programs. Wind

energy is a growing industry and Illinois should implement policies that

encourage wind energy development in Illinois.

C. Wind Turbines Must Not Be Classified As Nuisances

Theoretically if a court found that a wind turbine was a nuisance, it could

lead to the end of wind development.215

Fortunately, courts are not leaning

toward calling wind turbines a nuisance.

State legislatures, specifically Illinois, should go even further than courts

have and draft legislation that nuisance claims cannot be brought against wind

turbines. There is case precedence upholding a state legislature’s ability to

specifically define nuisance. In Moon v. North Idaho Farmers Association, the

Idaho Supreme Court found that a statute that abolished landowner’s rights to

bring nuisance claims for grass smoke was constitutional.216

The court stated

that “it is the province of the Legislature, and not of the court, to modify the

rules of the common law.”217

This practice should be adopted by the Illinois

legislature.

While some may believe that nuisance claims should be determined on a

case-by-case basis, and that removing wind turbines from nuisance may force

some people to live with harms they should not be forced to live with,

government has always had the power to define what constitutes a harm.

Anything that one neighbor does affects his neighbor. Building a second story

on a house changes the view that his neighbor now has, yet courts have held

that changing of the view or deprivation of light and air as “reasonable” and

not a nuisance.218

Having the legislature state that wind turbines are not a

214. Benjamin Yount, GOP Budget: Up to $6 Billion in cuts now will ease pain later, ILLINOIS

STATEHOUSE NEWS (Mar. 10, 2011), http://illinois.statehousenewsonline.com/5331/gop-budget-up-to-6-

billion-in-cuts-now-will-ease-pain-later/ (stating that Illinois currently has over a $4 billion deficit and cuts

will need to be made).

215. Wind energy companies would do a general cost-benefit analysis when determining whether

installing a wind farm. Private individuals being able to bring nuisance claims against wind farms would add

to the cost of doing business. Ultimately, if the costs of installing wind energy get too great, the wind energy

business will collapse. See generally Cost/Benefit/Risk Analysis, INSTITUTE FOR MANUFACTURING,

UNIVERSITY OF CAMBRIDGE, http://www.ifm.eng.cam.ac.uk/dstools/simulation/costbe.html (last visited March

10, 2012).

216. Moon v. North Idaho Farmers Association, 96 P.3d 637, 646 (Idaho 2004) (stating that this statute

was not a regulatory taking).

217. Id. at 645 (internal quotation marks omitted) (quoting Moon v. Bullock, 151 P.2d 765, 771 (Idaho

1944)).

218. Illinois and other states have held that a landowner has no rights in light or air. Guest v. Reynolds,

68 Ill. 478, 483 (Ill. 1873) (“That the defendants had the right to build a fence fifty feet high, on their own

land, or a high wall which should have the effect to deprive plaintiff of light and air, and obstruct his view, the

plaintiff himself showing no prescriptive or other adverse right, is settled by authority.”). See also

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Tive, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959).


nuisance is just clarifying “reasonable,” which is, and always will be, an

unfocused standard.

V. CONCLUSION

Illinois and America are on the right path to create a friendly environment

for wind energy companies.219

With Chicago being a leader in wind energy

companies, there is no better place for those companies to develop than right in

their backyard. Increasing wind energy development in the state cannot be

done without help from the federal government. Creating subsidies and

increasing the amount of money going towards research and development in

wind energy is crucial if wind is to be promoted as an energy source. Keeping

regulation on a local level will allow counties with vastly different geography

to regulate wind energy as they see best for their county. With collaboration

between federal, state, and local government, Illinois can help the United

States reach 20% by 2030.

219. Wind turbine installation has continued to grow as companies take advantage of government

initiatives. Total megawatt installation grew 31% in 2011 compared to 2010. See Christoper Martin, U.S.

Wind Turbine Installations Rose 31%, AWEA Says, BLOOMBERG (Jan. 26, 2012, 2:43 PM),

http://www.bloomberg.com/news/2012-01-26/u-s-wind-turbine-installations-rose-31-in-2011-awea-says.html.