Wake Effects, Wind Rights, and Wind Turbines: Why Science, Constitutional Rights, and Public Policy Issues Play a Crucial Role

Developers of onshore, utility-scale wind farms seek to purchase or lease parcels on which commercial wind turbines will be sited, carefully selecting each particular parcel based on its access to high wind speeds and unobstructed wind flowing across it in the free stream. Accordingly, a wind farm developer’s purchase or lease of a tract of land generally entails a large monetary investment and carries with it an investment-backed expectation that such land will be used for its originally intended purpose. Wind wakes, which disrupt the wind velocity in the free stream, cause downwind turbines to encounter diminished wind speeds and turbulence, as well as experience structural fatigue and stress. Collectively, these factors can substantially reduce these downwind turbines’ originally projected energy output over the course of their operational lives. When wind wakes generated from wind turbines on an immediately adjacent neighbor’s property extend over a downwind neighbor’s land, that land will experience wake-related adverse impacts. As a result, wind turbines that are already in place, or which are scheduled to be erected, on the downwind parcel may experience wake effects from its neighbor’s upwind turbines. Purchasing or leasing land that experiences wake-related adverse impacts can deprive a wind farm developer of the opportunity to realize its investment-backed expectation, translate into millions of dollars of future lost income, and render the parcel at issue effectively useless in terms of the original purpose for which it was obtained. This Paper provides an overview of wake effect–related matters wind farm developers and other prospective purchasers should consider in their respective decisions regarding land purchasing and leasing, wind turbine siting and placement, rights associated with wind flow across a particular parcel, and measures that can be taken to legally protect such rights. First, it presents a brief scientific overview about wind wakes and describes why they are important considerations with respect to land purchasing or leasing, particularly with respect to legally mandated setback requirements. Second, it provides background about other countries’ legal precedent and U.S. precedent for whether a federally recognized property right to unobstructed wind flow over a landowner’s parcel exists. Third, it discusses how safety concerns, not generally accepted scientific concepts relating to wind wakes and wake effects, are used to establish setback limits for commercial wind turbines from shared property lines. Fourth, it provides an overview of notice requirements and the establishment of entitlements under the Fourteenth Amendment’s Due Process Clause, including why a right to wind flow across one’s property may be deemed an entitlement. Fifth, it discusses legal rights that may be protected between parties by such parties entering into legal contracts. Additionally, it uses a recently litigated California case, Wind Energy Partnership et al. v. NextEra Energy Resources LLC et al., to illustrate real-world issues associated with wind wakes. These issues include due process and public policy considerations, such as why it may be financially detrimental to downwind landowners or downwind developers if they do not consider adequately the types of actions that may constitute adequate notice, the timing of government hearings for actions impacting the land at issue and these hearings’ significance, the temporal significance of land ownership, as well as the short-term and long-term goals of the local community. Finally, it suggests measures that landowners and developers should take as a matter of best practices to establish and secure legal protection of their wind rights

Wake Effects, Wind Rights, and Wind Turbines: Why Science, Constitutional Rights, and Public Policy Issues Play a Crucial Role

Developers of onshore, utility-scale wind farms seek to purchase or lease parcels on which commercial wind turbines will be sited, carefully selecting each particular parcel based on its access to high wind speeds and unobstructed wind flowing across it in the free stream. Accordingly, a wind farm developer’s purchase or lease of a tract of land generally entails a large monetary investment and carries with it an investment-backed expectation that such land will be used for its originally intended purpose. Wind wakes, which disrupt the wind velocity in the free stream, cause downwind turbines to encounter diminished wind speeds and turbulence, as well as experience structural fatigue and stress. Collectively, these factors can substantially reduce these downwind turbines’ originally projected energy output over the course of their operational lives. When wind wakes generated from wind turbines on an immediately adjacent neighbor’s property extend over a downwind neighbor’s land, that land will experience wake-related adverse impacts. As a result, wind turbines that are already in place, or which are scheduled to be erected, on the downwind parcel may experience wake effects from its neighbor’s upwind turbines. Purchasing or leasing land that experiences wake-related adverse impacts can deprive a wind farm developer of the opportunity to realize its investment-backed expectation, translate into millions of dollars of future lost income, and render the parcel at issue effectively useless in terms of the original purpose for which it was obtained. This Paper provides an overview of wake effect–related matters wind farm developers and other prospective purchasers should consider in their respective decisions regarding land purchasing and leasing, wind turbine siting and placement, rights associated with wind flow across a particular parcel, and measures that can be taken to legally protect such rights. First, it presents a brief scientific overview about wind wakes and describes why they are important considerations with respect to land purchasing or leasing, particularly with respect to legally mandated setback requirements. Second, it provides background about other countries’ legal precedent and U.S. precedent for whether a federally recognized property right to unobstructed wind flow over a landowner’s parcel exists. Third, it discusses how safety concerns, not generally accepted scientific concepts relating to wind wakes and wake effects, are used to establish setback limits for commercial wind turbines from shared property lines. Fourth, it provides an overview of notice requirements and the establishment of entitlements under the Fourteenth Amendment’s Due Process Clause, including why a right to wind flow across one’s property may be deemed an entitlement. Fifth, it discusses legal rights that may be protected between parties by such parties entering into legal contracts. Additionally, it uses a recently litigated California case, Wind Energy Partnership et al. v. NextEra Energy Resources LLC et al., to illustrate real-world issues associated with wind wakes. These issues include due process and public policy considerations, such as why it may be financially detrimental to downwind landowners or downwind developers if they do not consider adequately the types of actions that may constitute adequate notice, the timing of government hearings for actions impacting the land at issue and these hearings’ significance, the temporal significance of land ownership, as well as the short-term and long-term goals of the local community. Finally, it suggests measures that landowners and developers should take as a matter of best practices to establish and secure legal protection of their wind rights

COVID-19 Impacts: How a Global Pandemic Amid the Sunsets of the PTC and ITC Made the U.S. Wind and Solar Industries More Resilient

A cataclysmic event is sometimes the necessary catalyst for companies within certain industries to re- examine, radically shift, and replace their standard practices with technologically-advanced alternatives. In the United States, the occurrence of the Coronavirus pandemic (“COVID-19”) during the sunsets of the Production Tax Credit (“PTC”) and the Investment Tax Credit (“ITC”) created a unique confluence of factors that produced a perfect storm tantamount to such a cataclysmic event for companies in the wind and solar industries, particularly developers. Over the years, the domestic utility-scale wind industry has come to rely heavily upon the PTC, while the domestic utility- scale solar industry has come to rely significantly upon the ITC. Developers within each of these renewable energy industries originally planned to qualify for such federal tax credits, relying upon the presumption that goods would be delivered and services would be rendered in accordance with historical norms for “ordinary course of business” operations. This, however, did not occur. COVID-19 abruptly and unexpectedly emerged, with the virus’s widespread transmission sweeping the world during the end of fourth quarter 2019 and first quarter 2020. COVID-19’s consequences disrupted the global supply chain, creating workforce shortages, causing factories that manufactured equipment and components for wind farm and solar array construction to shut down, and presenting substantial hurdles for many developers to overcome in order to reach certain project construction and operations milestones – milestones that would have been readily reachable under normal circumstances. Irrespective of COVID-19 and its related ramifications, the step-down and phase-out periods of the PTC and ITC, respectively, nevertheless required these milestones to be met by certain fixed, federally- mandated deadlines. These rigid requirements posed an imminent threat to many commercial wind developers and solar developers alike, as failure to meet such milestones and deadlines meant tremendous adverse implications for their utility-scale wind or solar projects. Specifically, missing a deadline under the PTC or ITC meant that a project either would only qualify for a lesser federal tax credit amount than originally anticipated or would be forced to forego use of the federal tax credit altogether. For developers relying on one of these federal tax credits for purposes of financing their respective projects, neither of these alternatives were viable options. As there was no guarantee during first quarter 2020 that either the United States Congress or the United States Department of the Treasury would extend the PTC’s and ITC’s deadlines, developers were forced to pivot quickly, think out-of-the-box, and innovate. Consequently, a heightened level of inter-industry collaboration occurred within both the U.S. wind and solar industries. Developers throughout these industries also began re-examining the force majeure provisions in their contracts, evaluating the benefits of expanding the definition of a force majeure event to include health emergencies such as pandemics, and considering the merits of adopting uniform standards across contracts, including the mandatory requirement that identical force majeure definitions be used across the multiple contracts relating to the same project. This elevated contract drafting standards in both the U.S. wind and solar industries. Moreover, developers in these industries not only re-thought their equipment procurement strategies, but they turned to technological innovations to mitigate and refine their own internal operations and maintenance (“O&M”) practices. This resulted in ramped-up adoption of and increased reliance on high-tech devices, such as drones and Doppler Light Detection and Ranging systems (“LIDAR”), which helped to automate and streamline many companies’ internal O&M protocols. These changes permanently modified the character of O&M standards across the domestic utility-scale wind and solar industries, accelerating these industries’ advancement down the technology continuum and causing them to evolve more rapidly than they would have ordinarily. Ultimately, while the PTC’s and ITC’s deadlines did eventually get extended in late May 2020, prior to such time, in addition to smoothing the project permitting process and strengthening the finance industry’s pre-merger due diligence disclosure requirements for mergers and acquisitions (“M&A”) transactions, COVID-19’s impacts permanently transformed the U.S.’s wind and solar industries from a technological perspective, yielding positive operational outcomes and building resilience in both industries that will benefit them in the future

The Yoga Analogy: Scaling-Up the U.S.’s Renewable Energy Sector Mindfully with New Technologies, Evolving Standards, Public Buy-In, Data Sharing, and Innovation Clusters

This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry. Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance connectedness and engagement play in garnering public buy-in during a cutting-edge renewable energy device’s roll-out. Part III discusses private investors’ critical role in bearing financial risks associated with backing experimental technologies, promoting aesthetically unusual device designs, and integrating novel devices into the built environment. Part IV explores the advantages that data anonymization and data sharing within a data trust construct can produce for constituents in an innovation cluster, particularly those functioning together within a public-private partnership. Part V explores the benefits of introducing a renewable energy device prototype in an innovation cluster, where the government, academia, and industry collaborate and share data through public-private partnerships in an engaged, supportive, and technologically savvy community focused on accelerating the development of a particular industry. This paper concludes that by setting industry standards that continuously evolve in tandem with technologies they aim to regulate, having businesses’ investment-backed expectations remain a key driving force in renewable energy device development, and deploying government funding through innovation clusters that support data sharing and public-private partnerships in a particular industry, the U.S. can strike a desired balance and mindfully scale-up its nascent renewable energy industry

prM-reactive antibodies reveal a role for partially mature virions in dengue virus pathogenesis

Cleavage of the flavivirus premembrane (prM) structural protein during maturation can be inefficient. The contribution of partially mature flavivirus virions that retain uncleaved prM to pathogenesis during primary infection is unknown. To investigate this question, we characterized the functional properties of newly-generated dengue virus (DENV) prM-reactive monoclonal antibodies (mAbs) in vitro and using a mouse model of DENV disease. Anti-prM mAbs neutralized DENV infection in a virion maturation state-dependent manner. Alanine scanning mutagenesis and cryoelectron microscopy of anti-prM mAbs in complex with immature DENV defined two modes of attachment to a single antigenic site. In vivo, passive transfer of intact anti-prM mAbs resulted in an antibody-dependent enhancement of disease. However, protection against DENV-induced lethality was observed when the transferred mAbs were genetically modified to inhibit their ability to interact with Fcγ receptors. These data establish that in addition to mature forms of the virus, partially mature infectious pr

Mechanism of differential Zika and dengue virus neutralization by a public antibody lineage targeting the DIII lateral ridge

We previously generated a panel of human monoclonal antibodies (mAbs) against Zika virus (ZIKV) and identified one, ZIKV-116, that shares germline usage with mAbs identified in multiple donors. Here we show that ZIKV-116 interferes with ZIKV infection at a post-cellular attachment step by blocking viral fusion with host membranes. ZIKV-116 recognizes the lateral ridge of envelope protein domain III, with one critical residue varying between the Asian and African strains responsible for differential binding affinity and neutralization potency (E393D). ZIKV-116 also binds to and cross-neutralizes some dengue virus serotype 1 (DENV1) strains, with genotype-dependent inhibition explained by variation in a domain II residue (R204K) that potentially modulates exposure of the distally located, partially cryptic epitope. The V-J reverted germline configuration of ZIKV-116 preferentially binds to and neutralizes an Asian ZIKV strain, suggesting that this epitope may optimally induce related B cell clonotypes. Overall, these studies provide a structural and molecular mechanism for a cross-reactive mAb that uniquely neutralizes ZIKV and DENV1

A single intranasal dose of chimpanzee adenovirus-vectored vaccine protects against SARS-CoV-2 infection in rhesus macaques

The deployment of a vaccine that limits transmission and disease likely will be required to end the coronavirus disease 2019 (COVID-19) pandemic. We recently described the protective activity of an intranasally administered chimpanzee adenovirus-vectored vaccine encoding a pre-fusion stabilized spike (S) protein (ChAd-SARS-CoV-2-S [chimpanzee adenovirus-severe acute respiratory syndrome-coronavirus-2-S]) in the upper and lower respiratory tracts of mice expressing the human angiotensin-converting enzyme 2 (ACE2) receptor. Here, we show the immunogenicity and protective efficacy of this vaccine in non-human primates. Rhesus macaques were immunized with ChAd-Control or ChAd-SARS-CoV-2-S and challenged 1 month later by combined intranasal and intrabronchial routes with SARS-CoV-2. A single intranasal dose of ChAd-SARS-CoV-2-S induces neutralizing antibodies and T cell responses and limits or prevents infection in the upper and lower respiratory tracts after SARS-CoV-2 challenge. As ChAd-SARS-CoV-2-S confers protection in non-human primates, it is a promising candidate for limiting SARS-CoV-2 infection and transmission in humans