Monday, December 31, 2007

The Wind Farms Are Coming

Like machines in a Star Wars movie emerging from their lair on the Columbia River bank, wind powered turbines are advancing across the hills in Eastern Washington. I had business at the Grant County Courthouse recently and drove from Seattle to Ephrata to attend a hearing for my client, a mechanical contractor from Moses Lake. I drive Interstate 90 frequently and maybe they were there before, but I did not notice them until this last summer when, as I drove over the hill from Cle Elum toward Ellensburg, I saw the machines silhouetted on the distant horizon.

Our geography is like no other in the world, from temperate rain forests in the west to high desert plains in the east, with glaciers in the mountains feeding our great rivers, and the visual landscape is beautiful. Highway 2 from Wenatchee to Davenport is one of my favorite roads; the fields come right up to the two lane roadway, and abandoned farm houses, barns and wind mills at the old well stand still. On the highway from Spokane to Colfax, near Sprague, you can see an old railroad bridge that spans several hills; the tracks have been removed and from a distance its magnificent stone arches look like an old Roman aqueduct. Billboard signs along the way say “Leave the Dams Alone.”

It is a classic, Western, geography where you can see Indian Tribes, hard rock miners, 4-H champions, ropings and rodeos, a steady wind pushing tumbleweeds across the road and, best of all, vistas wide open as far as the eye can see. Drawn to Gonzaga Law School at first by the fishing, camping and skiing nearby, I lived in Spokane for four years and learned about some of the geography in courses on mining law and water law. The rest I picked up at barter fairs in Ione and Tonasket, hiking in the Selkirks, fishing on the Snake River at Penawawa, driving down a frozen Highway 395 from Ritzville to Tri-Cities on a gray zero degree day thankful for the studded tires on my rear wheels, and an estate auction at an old farmstead near Lind. We bought an old ironing board with a floral print cover at the auction, and after we got it home we found it had nine covers, one on top of the other. What is old is good, what is very old is even better and some of these landscapes are as old as the hills.

Eastern Washington’s Western outlook includes a healthy skepticism about the power of government. Without forgetting that government built the dams that provide irrigation and power, or that government subsidized the railroads that helped populate the region, or that government is trying to protect the aquifer, or that government can do many things well, government also too often intrudes in ways that a Westerner resents. And these new wind farms set the stage for a reevaluation of the values that we hold dear.

According to the US Energy Information Administration, in 2004 (the year the most recent data is available) Washington was a net exporter of electricity. That means we generate more electricity than we use. Most of our electricity, naturally, is generated by the hydroelectric dams on the Columbia and Snake Rivers in Eastern Washington with smaller contributions from the Skagit and Elwa Rivers in Western Washington. But new wind farms are being approved in Eastern Washington as fast as Governor Gregoire can say “yes,” and in many cases, such as a recent approval for Kittitas County, approval in Olympia comes over strenuous objections from local residents who don’t want their horizons blotted with large lifeless machines.

But why shouldn’t a rancher with thousands of acres of otherwise unproductive land where the wind blows all day be allowed to harvest the wind? Isn’t that what property rights are all about? The electric power grid is national and the largest importer of power in the Western states is California. Would it matter if corporate interests seeking to export the power for profit were the developers of these wind farms? Don’t we need more energy and not less, especially if it can be acquired without burning fossil fuels?

Or should the value of a wide open horizon on a clear day outweigh these other interests?


Lauren said...

This should be straightforward, but our law doesn't always follow the straightforwardness of our landscapes.

I'm not aware whether Washington follows Florida (re Fontainbleu)in viewshed rights, but I thought we did not have the right to a view unless the right is created by a covenant.

The "obvious" policy formula is that a property owner may do what he wishes with his property unless he is perpetrating a nuisance. Building wind generators, or permitting cell towers to occupy one's property would seem to be clear rights to the use of one's land.

The neighbors, on the other hand, do not own the clear blue sky, or even the stormy one, or the horizon; therefore, they lack rights to their "use," in this case, gazing.

But nothing is clear once interests tangle and vie for amplified status in new judge-made laws.

Hamm said...

Is it really so simple as what the law allows?

The question could be asked whether the wind is any person’s possession to harvest and profit from. But assuming that the rancher may harvest the wind that passes over his fields as a matter of right, aren't "may" and "should" frequently two different things? Can’t we all think of scenarios where the law allows us to do something, but where the breadth of the permission vastly exceeds the scope of advisable action upon that permission?

With that fundamental concept in mind, and given that no person exists in isolation, don't community interests and values matter -- particularly in the given scenario in the Eastern Washington countryside, where fundamental community values include a reverence of the beauty of the wide open space? And in its best and purest form, doesn’t government exist to implement and administer the community interests and values in the most balanced way possible? Isn’t that what representative government is supposed to be about?

The best answers to the questions surrounding the growth of the Wind Farms will likely be found only if there is balancing of the all the relevant community interests. Ideally this could be worked out locally and without government intervention, but because we do not live in an ideal world, aren’t we bound to acknowledge the reality that sometimes government must step in to assist in achieving balance and finality for the good of the community (however the boundaries of “community” are defined).

Lauren said...

And how is government to assist in achieving balance between the community and the private landholder? Don't we make laws to define the respective rights of these often discrete interests?

cominus said...

Hamm, you have a very socialist concept of the responsibility of government, which is antithetical to representative government.

Lauren is correct, no one has a right by law to view shed except by covenant.

The other hindrance to the wind farms would be zoning regulations. And, as activist as the courts have become, still, don't expect them to find a victimhood against the harvesting of the wind.