Turbulence Between Wind Turbines and Military Airfields

February 23, 2017

Texas Wind Energy

The latest boom in renewable energy is happening right in our own backyard. Texas is the leading state for wind energy with over 18,500 megawatts generating capacity.[1] The first wind turbine in Texas was installed in 1999.[2] From then until now, Texas has been home to over 11,000 wind turbines with over 100 wind projects online.[3] The presence of wind energy in the lone star state currently provides for over 24,000 jobs and also provides environmental benefits to the state.[4] With the strides made in wind energy, there are increasingly more wind energy projects being implemented around the state.

 

Federal Tax Incentives

Two important tax credits available for renewable energy are the Production Tax Credit (PTC) and the Investment Tax Credit (ITC). The PTC was originally enacted in 1992 but has since undergone several reenactments and expansions.[5] The latest extension occurred in 2015 and expires in 2020.[6] In the context of wind projects, the PTC is available to projects that are constructed before December 31, 2019.[7] The credit is applied on a 10-year, inflation-adjusted basis.[8] Wind projects eligible for the PTC were allowed to opt-in for the ITC in lieu of the PTC.[9] The ITC makes distinctions between small wind turbine and microturbine savings categories.[10]

 

Federal Aviation Administration

Even though the wind boom across Texas means increased energy production for our state, some of these strides are causing tension. A consequence of this progress means there are more restrictions on wind energy projects.

Currently, the Federal Aviation Administration (FAA) is the regulatory body for wind turbines in the aeronautical arena. The FAA requires anyone proposing to construct wind turbines or MET towers beyond a threshold height to file their project plans with the administration, regardless of the proposed structure’s location in relation to airport or military airfield property.[11] The FAA is tasked with reviewing the file to determine if the prospective structure falls in the category of “No Hazard to Air Navigation.”[12]

 

Proposed Bills

Senator John Cornyn introduced a bill, “Protection of Military Airfields From Wind Turbine Encroachment Act,” which would eliminate future tax credits for wind farms located within a 30-mile radius of military airfields.[13] The bill was initially introduced in September of last year, but it did not go through for a vote before the session ended in December. The bill is a proposal to amend the Internal Revenue Code, proposing to take away eligibility for both the Production Tax Credit and the Investment Tax Credit for wind energy projects built within the 30-mile radius of military airfields.[14]

Senator Cornyn’s objectives with this bill are twofold: first, for the public safety of those living around military bases; and second, to aid in safe training for military pilots.[15] The bill would not take away those tax credits from the projects approved prior to the bill, and it would not altogether ban those projects with locations 30 miles from military airfields.[16] However, because the tax incentives are substantial in these capital-intensive wind energy projects, the bill would likely act as a de facto ban on projects within the restricted area.

Other bills relating to wind turbines and military airbases have been introduced to the House of Representatives. Representative Chris Collins introduced a bill with similar tax consequences, but this bill extends the radius to 50 miles from military airfields.[17] Representative Blake Farenthold’s bill, “Ensuring the Safety of Our Military Aviator’s Act of 2017” is similar to, but stricter than, Senator Cornyn’s bill.[18] Ensuring the Safety of Our Military Aviator’s Act imposes a 25-mile radius restriction of wind turbine projects from military airbase or airfield. Instead of eliminating tax incentives for wind turbine projects located within the restricted radius, the bill tightens the reigns even further. The bill completely restricts all construction of wind turbine projects whatsoever within that radius.[19]

 

Conclusion

As wind energy projects currently stand, the FAA makes determinations regarding wind energy projects on a case-by-case basis. Senator Cornyn’s and Representative Collins’ proposed bills, unlike Representative Farenthold’s bill, would not ban wind energy companies from seeking to site their projects near military airfields; however, the negative tax consequences are so severe as to deter the companies from siting projects within the restricted areas. Consequently, if the proposed bills are passed, they may replace the current case-by-case determination with a bright-line rule on future wind energy projects’ locations in relation to military airfields.


[1] Texas: State Profile and Energy Estimates, U.S. Energy Info. Admin. (updated Jan. 19, 2017), http://www.eia.gov/state/?sid=TX.

[2] Turbine Timelines: 1990, American Wind Energy Ass’n, http://www.awea.org/About/content.aspx?ItemNumber=774. (last visited Feb. 13, 2017).

[3] American Wind Energy Ass’n, Texas Wind Energy 2, http://awea.files.cms-plus.com/FileDownloads/pdfs/Texas.pdf.

[4] “Generating wind power creates no emissions.” Id.

[5] Renewable Electricity Production Tax Credit, Dept. of Energy, https://energy.gov/savings/renewable-electricity-production-tax-credit-ptc. (last visited Feb. 13, 2017).

[6] Renewable Generation Capacity Expected to Account for Most 2016 Capacity Additions, U.S. Energy Info. Admin. (Jan. 10, 2017), http://www.eia.gov/todayinenergy/detail.php?id=29492.

[7] Renewable Electricity Production Tax Credit, Dept. of Energy, https://energy.gov/savings/renewable-electricity-production-tax-credit-ptc. (last visited Feb. 13, 2017).

[8] Id.

[9] Business Energy Investment Tax Credit, Dept. of Energy, https://energy.gov/savings/business-energy-investment-tax-credit-itc. (last visited Feb. 13, 2017).

[10] Id.

[11] 14 C.F.R § 77.

[12] 14 C.F.R. § 77.31.

[13] Protection of Military Airfields from Wind Turbine Encroachment Act, S. 201, 115th Cong. (as referred to S. Comm. on Finance, Jan. 24, 2017).

[14] Id.

[15] John Cornyn, Newsroom, United States Senator for Texas (Jan. 25, 2017), https://www.cornyn.senate.gov/content/new-cornyn-bill-will-protect-military-airspace-radar-interference-caused-wind-turbines.

[16] Protection of Military Airfields from Wind Turbine Encroachment Act, S. 201, 115th Cong. (as referred to S. Comm. on Finance, Jan. 24, 2017).

[17] Protection of Military Airfields from Wind Turbine Encroachment Act, H.R. 649, 115th Cong. (as referred to H. Comm. on Ways and Means, Jan. 24, 2017).

[18] Ensuring the Safety of Our Military Aviators Act of 2017, H.R. 403, 115th Cong. (as referred to H. Subcomm. on Aviation, Jan. 11, 2017).

[19] Id.

Catherine Ellis is a second-year law student at The University of Texas School of Law. She graduated from The University of Texas in 2009 with a Bachelor of Science in Education: Applied Learning and Development. She will be working at the Houston office of Baker Botts during the summer of 2017.