All cities and towns in the U.S. utilize electric power. Electric power needs to be generated. Now, energized by larger issues of rapid climate change, the U.S. and all nations must transition to lower-carbon-emission sources of power generation, of which wind power currently is the most prominent and used technology. Any community hostile to wind power can pass a highly restrictive amendment to its zoning ordinance that makes the community unattractive or costprohibitive to wind or other power generation projects. There is no requirement under state law for states to allow tens of thousands of cities and towns carte blanche to elect to ‘zone-out’ the most prevalent renewable power generation technology through ‘aesthetic’ zoning unless that specific wind power project also always presents a legally recognized conventional nuisance injury to proximate citizens or their properties. Ironically, the use of land for wind turbine power capture leaves that land as open space without human habitation and increases the property tax base realized and enjoyed by the town.
Each of the six innovative alternative pathways identified in Part IV of this article could be implemented within existing state authority without amending U.S. federal law or the Constitution. Each would flexibly allow renewable electric power infrastructure siting to proceed on a case-by-case basis, preserving all stakeholders’ rights under existing common law and/or through requirements for developers to obtain local land-use special permits. These innovative legal tools can support states to contribute to decarbonizing the U.S. electric system at the rapid pace required to rescue and preserve the world climate.
Steven Ferrey, Flipped Constitutional Supremacy: Inferior Local Law Blocking Federal Policy, 2023 ULR 65 (2023). https://doi.org/10.26054/0d-6pth-heqw