Who owns Ireland's wind?

Analysis: in the absence of formal recognition of a legal 'wind estate', ownership is bundled together with ownership of land

By Robert Wade, Queen's University Belfast

The urgent need to stop burning fossil fuels means we must seek alternative energy sources. Fortunately, Ireland is endowed with large wind resources which can fuel this transition. By 2030, Ireland's Climate Action Plan commits to double onshore wind capacity from 4.3GW to 8.2GW and to develop 5GW of offshore wind energy. How we organise, communicate and govern this transition has ramifications for whether we can achieve our energy and climate targets. This is also important for understanding the long-term social implications of our new energy system, including who benefits and who pays the cost.

But one very important question seems to have been lost in this wind rush: who actually owns Ireland's wind? While ownership of air or airspace is not explicitly defined in Irish law, landowners’ interest in the airspace above their property seems to be implicitly recognised in some cases.

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The Land and Conveyancing Law Reform Act (2009) defines ‘land’ as including "the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way". Presumably, therefore, wind turbines fall within this definition of ‘any building or structure’.

This matches with the findings of legal scholars in other jurisdictions, from Germany to the US and China. In the absence of formal recognition of a legal ‘wind estate’, ownership of wind is bundled together with ownership of land. When it comes to offshore wind resources, the same principle applies. Since the state owns the seabed, it owns Ireland’s offshore wind resource.

Ireland is surrounded by some of Europe's best wind resources. Purple = strong and consistent winds. Image: Global Wind Atlas / DTU

Practice has followed this (lack of) legal arrangement. The critical first step in wind development is securing a site, which usually involves developers approaching landowners and signing lease agreements. Leases usually last 30 to 35 years and vary considerably in their value. These contracts tend to be quite secretive, but approximate values are around €6,000 per megawatt of installed capacity, so around €20,000 per turbine per annum based on today's turbine sizes.

Rents are sometimes calculated as a percentage of gross revenues, so likely skyrocketed this year alongside profits as electricity prices soar. As suitable land becomes increasingly scarce, competition between developers for sites can also lead to higher lease values.

Large landowners like Bord na Móna and Coillte can harvest their own wind resources or lease them to commercial developers. For offshore resources, the state leases out portions of the seabed for development by commercial entities in exchange for a royalty. In each of these situations, landowners, by virtue of their de facto possession of wind resources, can decide who accesses that wind resource and can extract a rent or royalty fee in exchange for its use.

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This situation is not unique to wind. In the past, resources such as coal, oil and minerals belonged to landowners. However, in many jurisdictions, ownership of these resources was eventually taken into state control for public benefit. If we decide to understand and redefine wind as a commonly owned resource, this could have potential benefits for the energy transition.

Under current arrangements, onshore wind development is coordinated primarily by markets for land. Wind farm development can therefore become fragmented and lack coordination within and between wind farms, and between wind farms and national-level grid capacity. Social ownership (by state or community) could enable higher levels of coordination.

Socialised wind resource rents could enable a more equitable distribution between those who do and do not own land in a community. Furthermore, socialised wind rents could be redistributed to other groups such as laid-off fossil fuel workers to contribute to a Just Transition.

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Social ownership of wind resources could enable genuinely democratic participation which reflect the local needs and values of host communities. This would replace existing practices where silence is frequently encouraged until sites have been secured, oftentimes perceived as too late for local communities to have a say. Giving communities control over the wind resource would help overcome objections to wind energy installation (still one of the main obstacles to be faced).

Finally, social ownership of wind resources is a crucial first step to supporting other industrial development models. For example, if Ireland is to become the 'Qatar of renewable energy’ with state-led development, the state or community securing ownership of the resource itself is a necessary prerequisite. Community energy initiatives could also benefit from nationalised or commonly owned wind rights, potentially tilting the scales of the development process in their favour. Community initiatives pioneered renewable technologies in Denmark and Germany, galvanising popular support for their energy transitions. In Ireland, they currently face difficulties navigating a risky development process designed for commercial developers.

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There are various options for arranging how these rights are organised. Examples could include a concession tendering system in which the state conducts pre-feasibility studies before allocating areas for wind development. Alternatively, communities could be the locus of wind rights, coordinating their exploitation in a bottom-up and decentralised way. There are plethora examples of such community-managed common resources around the world, including the Irish group water sector.

Models such as these could rally support for the low-carbon transition around our shared asset. To do this, we need to first legally define how this asset is owned. Just like the rights to work or commercially extract minerals were vested in state ownership in the Minerals Development Acts, we could do the same for the industrial harvesting of wind resources.

Key questions would include the desired balance of state, community and private rights to ownership and exploitation of wind resources. As we look to the future and a renewables-based society, asking ‘who owns the wind?’ opens a raft of possibilities to reimagine our future on this island in an increasingly carbon-constrained world.

Robert Wade is a PhD student in Environmental Planning at Queen's University Belfast. He is employed as an Early Career Researcher within the MISTRAL Innovative Training Network, funded by the EU’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie actions (Grant Agreement No. 813837).

The views expressed here are those of the author and do not represent or reflect the views of RTÉ

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