March 24, 2011
Renewable Energy and the Common Law
Regulation of renewable energy is almost as old as the field itself. Who, for instance, doesn't want a t-shirt emblazoned with the logo "I <heart> PURPA"?
Clearly, the emergence of renewable portfolio standards, feed-in tariffs, net metering requirements, a "smart grid," and more, make renewable energy regulation a burgeoning field. This past January, the University of Utah law school hosted a symposium on "The Future of Energy Law," which touched on many of these issues.
Increasingly, though, there is an emerging scholarship on the intersection of the common law and renewable energy. How these legal developments shake out, too, will have important ramifications for our energy profile of tomorrow.
Three recent examples of this scholarship are worth noting. Or, as Professor Solum would say, "download them while they're hot!":
- Alan J. Alexander on The Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest: "Similar to the initial growth of the oil and gas industry in Texas, the wind energy industry was also born, and continues to grow, in the absence of clear legal and regulatory standards. Lack of regulation in the early development of the oil industry contributed to oversupply and rampant waste of oil. Similarly, lack of regulation of the developing wind energy industry could lead to wasteful practices regarding wind energy development. This Note argues that the Texas Legislature should pass laws clarifying that wind is a natural resource under the Texas Constitution, and that to promote [conservation and development], the Legislature should statutorily recognize wind rights as an interest severable from land ownership."
- Alexandra B. Klass on Renewable Energy and the Public Trust Doctrine: "This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance?"
- Troy A. Rule on Airspace in a Green Economy: "[A] growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land."
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