Steven G. Bell1

With interest in renewable energy sources gaining momentum, it is only natural that controversy will arise surrounding the proliferation of wind energy.  While this conflict has already manifested itself in the context of federal law, in North Carolina, a state with favorable conditions for wind energy development, the fate of the budding technology remains uncertain amidst statutes which did not contemplate the possibility of widespread wind energy harvesting.  North Carolina's most favorable sites for wind energy development are protected by the Mountain Ridge Protection Act and the Coastal Area Management Act.  This Comment explores both Acts to determine if wind energy development in the Tar Heel State will be defeated before it can even begin.

Cite as 8 N.C. J.L. & Tech. 117 (2006) | Download PDF

I. Introduction-The Winds of Change

In recent years, amid higher prices for fossil fuels, many individuals and businesses have begun to explore the possibility of using renewable energy sources.2  Although the options for generating renewable energy are numerous, wind energy has come to the forefront as one of the most viable.3  As interest in wind power grows, litigation over the siting and erecting of wind turbines is inevitable.  Controversies in other states have demonstrated that public opinion, coupled with uncertainty regarding the law, can have the effect of stalling or crippling a proposed wind farm.4  

Despite ambiguity in North Carolina law, the development of wind energy is becoming a reality in the State, with one large-scale wind farm planned for Ashe County.5  However, the fate of this project and others remains uncertain.  With suitable sites for wind farms along the coast and atop high mountain ridges, North Carolina's wind energy potential seems to be curtailed by well-meaning statutes that make up the Mountain Ridge Protection Act6 and the Coastal Area Management Act.7  These Acts were promulgated to address other issues of development in environmentally sensitive areas.8  Despite the threat posed to wind energy projects by these two Acts, interest in wind energy continues to grow, and North Carolina is poised to join the ranks of other states9 and nations10 that draw portions of their energy supply from this budding technology.  

This Comment will focus on North Carolina law's possible preclusion of wind energy development in the most desirable sites for this new technology.  Although the Mountain Ridge Protection Act and the Coastal Area Management Act are long-standing and well-established, both remain untested in court in the context of wind turbines.  This creates an aura of uncertainty that is ripe for litigation.  This Comment will show why North Carolina law, while murky in its current state, should not prevent the development of wind energy and should leave the technology a viable option for North Carolina, both climatologically and legally.  

First, this Comment will provide a brief summary of North Carolina's attributes and characteristics that make it suitable for wind energy harvesting.  This analysis will emphasize why wind energy is being considered as an option and where the best sites are located.  Second, this Comment will focus on the mountainous regions of western North Carolina and the potentially hindering Mountain Ridge Protection Act.  The precise wording of the Act is examined, followed by a review of the history surrounding its enactment.  The discussion begins by examining Watauga County's new wind energy ordinance and possible guidance from the North Carolina Attorney General.  This examination will demonstrate that despite the vague prospects of wind energy development under the Mountain Ridge Protection Act, wind turbines are most likely exempt from its regulations in any context.  Third, this Comment will examine the Coastal Area Management Act to forecast the legal hurdles an intracoastal North Carolina wind energy project may face.  Here, the wording of the Act is scrutinized and analyzed as it works in tandem with the Public Utilities Act.11  Lastly, the Coastal Area Management Act is examined in context with its corresponding administrative code to show that it, like the Mountain Ridge Protection Act, will not outright preclude a wind energy project.  By following these steps, this Comment will show that the emerging technology of wind energy can continue to develop against the background of current North Carolina law.