By: M. Shane Harvey
West Virginia has long been blessed with tremendous natural resources. It has some of the finest coal and natural gas reserves anywhere in the world. These resources have been developed for more than 150 years.
More recently, wind and solar energy providers have discovered West Virginia. In addition to having ample wind and sunshine, West Virginia’s location makes it an attractive place from which to supply renewable power to customers in the heavily populated East Coast.
But here’s the trick: West Virginia’s long history of coal and natural gas development require heightened diligence from developers of wind and solar when choosing a location in West Virginia.
This diligence starts in the record room. Ensuring full title to the surface is not enough. In West Virginia, it is often the case that mineral estates were separated from surface estates more than a century ago. Frequently, the deeds separating these estates give mineral owners powerful rights that are not readily apparent when reading the underlying (and often handwritten) deeds. For instance, in West Virginia, coal reserves can be conveyed in a manner that allows the mineral owner to completely subside the surface estate, even though the words “subside,” “subsidence,” or “subjacent support” never appear in the underlying deeds. See Simmons v. Star Coal & Coke Co., 167 S.E. 737 (W.Va. 1933)(finding a waiver of the right of subjacent support because it is “common knowledge in the coal fields that removal of all of a seam of coal … is likely to cause surface disturbance”). Such a scenario could be disastrous for the unwary solar or wind developer who buys or builds above a mineral owner having the right to subside without liability.
Similarly, both coal and natural gas leases often give the lessee broad rights to use the surface in conjunction with its mineral development. This, too, could present large problems for unwary wind or solar developers. For example, coal leases for underground mining often grant the lessee superior rights to use such parts of the surface as are reasonably necessary to accommodate underground mining. Thus, an underground mine operator in need of a new access road, mine shaft or ventilation fan could place such features on the surface in a way that interferes with solar or wind facilities. Natural gas leases can present similar problems.
Problems might also lurk outside the chain of title. For example, in Gestamp Wind North America v. Alliance Coal, LLC, a wind developer built a wind farm adjacent to a coal mine and then later filed suit to halt coal development of the mining complex after concluding that the expanding mine interfered with wind flow and generated dust that damaged wind turbines. The wind developer argued that the coal mine interfered with its right to unimpeded wind flow.
The court was unsympathetic to this argument, concluding that “absent an agreement between the parties or a governmental regulation, a property owner has no right to prevent a neighbor from altering its property in ways that affect air and light on the plaintiff’s property.” The failure here was that the wind farm obtained an easement to construct its turbines on a ridge top, but did not obtain any protection for its “wind shed” from the owners of the adjoining slopes, which were owned or leased by the mining company.
Lastly, wind and solar developers should not assume that a wind or solar farm will be permitted as long as it complies with state and federal laws. West Virginia towns and counties have the power to enact local ordinances, and these ordinances have the potential to hinder or stop projects. This issue needs to be addressed early in the siting process.
Jackson Kelly has a long history of helping develop natural resources in West Virginia and is intimately familiar with issues like those described above. Please reach out to our Renewable Energy Group if you need assistance or email Shane Harvey, responsible attorney.