Thursday, April 10, 2014
CALL FOR PROPOSALS
The AALS Section on Natural Resources and Energy Law is seeking proposals for its first energy-focused program: "Seismic Shifts in Energy; The Repercussions of Local Solar and Distributed Generation."
As part of our effort to be inclusive, the section is Calling for Proposals from anyone who would like to present on this topic at the AALS Annual Meeting, January 2-6, 2015.
If you are interested in participating in this program, please submit a one-page proposal to firstname.lastname@example.org by 5:00 p.m. MDT on Monday, April 14, 2014.
Please put "AALS Prospective Proposal" in the subject line and make sure that you receive an email response acknowledging receipt of your proposal.
The executive officers will choose 2 or 3 of these proposals for presentation at the annual program. The AALS requires that all presenters pay their own registration, transportation, food, and lodging expenses, so please do not submit a proposal unless you can commit to being present in Washington, D.C.
The Environmental Law Reporter has kindly agreed to give all presenters the option of publishing any articles written in conjunction with the program.
Friday, July 19, 2013
Hannah Wiseman (Florida State) has posted Urban Energy, published in the Fordham Urban Law Journal, (invited symposium), 2013. The abstract:
The twenty-first century has seen important changes in the U.S. energy system, and most share a common theme: In some regions of the country, energy infrastructure is now located near human populations. As has always been the case; fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found; and humans have little control over its location. Energy companies must move to the areas of highest resource abundance and find available surface space from which to capture these fuels. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. Sunlight and wind require thousands of acres of technology installations to be efficiently captured, and unconventional oil and gas resources exist at low densities over wide areas in shales or tight sandstone formations. As we tap these sources in ever more numerous locations, energy bumps up against certain human population centers. The city of Fort Worth, Texas, for example, now hosts thousands of natural gas wells, and San Diego has more than 4,500 solar projects. Indeed, with the rise of the Smart Grid; every American consumer could become a small source of electricity; sending electricity back into the grid from a plug-in hybrid vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As the extraction of fuels and generation of electricity (“energy production”) become integral parts of certain population centers; the law will have to adjust; responding to land use and environmental disputes, nuisance claims, enhanced demands on local electricity grids, and concerns about equity, in terms of unevenly distributed effects. This Essay explores these new themes in energy law; investigating how certain populated areas have begun to embrace their role as energy centers; by addressing conflicts ex ante, creating systems for permitting and dispute resolution that balance flexibility with predictability, and managing the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessonsfor improving energy law, based on the piecemeal approaches so far.
Very important analysis; Prof. Wiseman (a former guest-blogger here!) has provided some of the most interesting recent scholarship on the new energy boom and land use.
July 19, 2013 in Clean Energy, Environmental Law, NIMBY, Oil & Gas, Planning, Property Rights, Scholarship, Sustainability, Texas, Urbanism, Wind Energy, Zoning | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 24, 2013
It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."
My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.
Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!
And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.
The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.
Thursday, April 11, 2013
Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.
My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.
I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.
- Jessie Owley
Wednesday, February 13, 2013
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Friday, January 4, 2013
Living in Pennsylvania (as I now do) I feel compelled to see the new Matt Damon movie "Promised Land," which opened in local theaters yesterday. The movie is about fracking, and the trailers look very intriguing. (I saw the trailer while seeing Tom Cruise's new movie "Jack Reacher" which, while most notable for multiple visceral fight sceens and car chases, also has a land use angle - SPOILER ALERT the villians are developers trying to get an advantage in a development project in downtown Pittsburgh.)
Today I was searching for a review of Promised Land and I stumbled across this article on NPR.org, which had an interesting critique of a scene where local citizens vote on whether fracking would happen in their town.
The film remains in the realm of fiction as the town debates an upcoming vote on whether drilling and fracking should be allowed. In the real world, there's almost never a vote.
"In Pennsylvania, where this film was made, municipalities have very little authority over what happens," says Kate Sinding, senior attorney and deputy director of the Natural Resources Defense Council. "They certainly don't get an up-and-down vote."
Still, I think this movie is a "don't miss" for land use afficianados, and I plan to see it soon.
Jamie Baker Roskie
January 4, 2013 in Clean Energy, Community Economic Development, Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Local Government, Oil & Gas | Permalink | Comments (0) | TrackBack (0)
Saturday, November 17, 2012
Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom. As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote. Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy. Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change. But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation. As Adler describes:
Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .
Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .
A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.
Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.
The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.
Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels. I look forward to the symposium isse in the Case Western Law Review.
November 17, 2012 in Clean Energy, Climate, Comparative Land Use, Conferences, Environmental Law, Environmentalism, Federal Government, Lectures, Oil & Gas, Property, Property Rights, Scholarship, Water | Permalink | Comments (2) | TrackBack (0)
Thursday, September 6, 2012
Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012). The abstract:
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
Wednesday, August 22, 2012
The University of San Diego School of Law will host the Fourth Annual Climate & Energy Law Symposium on Friday, Nov. 9, 2012. This year's title is Law in a Distributed Energy Future. Here is the symposium overview:
The University of San Diego School of Law's fourth annual Climate and Energy Law Symposium will examine emerging law and policy approaches to encourage and accommodate distributed energy solutions. Historically, electricity has been generated by large power plants located far from consumers and delivered via long transmission lines. While that model remains largely intact, a gradual shift is occurring toward more localized energy production.
The symposium will bring together legal and policy experts from across the country to address a variety of key issues including the latest developments in the rules that govern the electricity grid change to incorporate distributed generation, possibilities for generating energy at the neighborhood and community levels, the legal and policy innovations at the federal, state and local levels that are most needed to usher in a distributed energy future.
Keynote addresses will be given by Commissioner Carla Peterman of the California Energy Commission, and Ken Alex, senior policy advisor to California Governor Jerry Brown and director of the Office of Planning and Research. The program and registration info are at the website.
Friday, July 20, 2012
Lesley McAllister recently announced a symposium on Climate and Energy Law that might be of interest to our readers. Land use is so closley entwined with energy sprawl, electricity distribution, and facility siting, I am sure it will be discussed extensively in San Diego in November.
USD Climate & Energy Law Symposium, SAVE THE DATE - Nov. 9, 2012
The University of San Diego School of Law will host its Fourth Annual Climate & Energy Law Symposium on Friday, November 9. The 2012 symposium will bring together leading academics and practitioners to explore the theme of Law in a Distributed Energy Future with questions such as:
- How should the rules that govern the electricity grid change to incorporate distributed generation?
- What possibilities exist for generating energy at the neighborhood and community levels?
- What legal and policy innovations at the federal, state and local levels are most needed to usher in a distributed energy future?
Confirmed speakers include: Carla Peterman, Commissioner, California Energy Commission (Keynote) Scott J. Anders, Director, Energy Policy Initiatives Center, University of San Diego School of Law Sara C. Bronin, Associate Professor of Law & Program Director, Center for Energy & Environmental Law, University of Connecticut School of Law Timothy Duane, Associate Professor of Law, Vermont Law School Joel B. Eisen, Professor of Law, University of Richmond School of Law Michael B. Gerrard, Andrew Sabin Professor of Professional Practice, Columbia Law School Lesley K. McAllister, Stanley Legro Professor in Environmental Law, University of San Diego School of Law J.B. Ruhl, Matthews & Hawkins Professor of Property, Vanderbilt Law School Katherine Trisolini, Associate Professor of Law, Loyola Law School Hannah Wiseman, Assistant Professor, Florida State University College of Law
Thursday, June 14, 2012
I recently came across several studies that answer a long-running question of mine: what is the carbon footprint of goods traveling from China to that big box store down the road? The answer also planted a more perplexing question: could it be possible that the carbon footprint of goods in China, if built and assembled in China (or some other distant country) and shipped in a particular eco-sensitive way, could be less than goods "made in the USA"?
The issue of goods transportation and carbon footprints seems to me one of the most important, but potentially counter-intuitive, aspects of land use policy. Independent of economic concerns, which of course is a huge issue of its own, we might presume that a consumer good "made in the USA" has a lower carbon footprint than one made in China. But what if the "American" good is made from parts manufacturers around the world and simply assembled in the United States? For instance, just 40% of the Ford Focus in made in the USA, and just 15% of that car is made in Mexico, with the remainder coming from non-North American parts suppliers. Most "American" cars are really smorgasbords of parts suppliers shipped from the world over to a factory in the US. At the very least, that provides factory assemply jobs for US workers. But if we just consider the environmental impact for a minute, would the carbon footprints of those cars be lower if all the parts were made in one place in China, assembled in China, and then those cars were shipped to their US destinations?
While I can't answer that question directly, a really interesting November, 2011 paper, Moving Containers Efficiently with Less Impact: Modeling and Decision-Support Architecture for Clean Port Technologies, by Josh Newell and Mansour Rahimi at USC's School of Policy Planning and Development, traces the important steps in answering carbon footprint issues in the supply chain. In particular, Chapter 2 in the report models the emissions from real container shipments of an undisclosed toy manufacturer from manufacturing destinations in China to various retail destinations across the US.
The report noted that there were three main contributors to carbon footprints, each of which were potential variables:
The first is the land contribution, which is partitioned into China and United States segments, and is further partitioned into truck and rail segments. The second contribution comes from the sea, which is portioned into cruising speed, and slow speed segments. The third contribution comes from port operations for loading and unloading containers.
In general, the report concluded:
For the average container shipped from China to various U.S. destination zip codes, a carbon footprint of 2,821 kilograms per container per trip was determined. Transport by container ship is the most efficient in terms of CO2 burned per mile. So it is possible for a container to travel a greater distance, yet have a smaller carbon footprint than one that uses land transportation (train/truck) for a greater portion of the distance.
So there you have it: 2,821 kilograms per container on average. And the further the container goes by ship, the lower the CO2 emissions. A similar NRDC study studying retail apparel shipments from China to Denver compared air to ship transit and concluded:
[T]he truck-air-truck pathway emits over 5 times more soot (particulates) and 35 times more greenhouse gases than rail-ship-rail, sending an additional 99 tonnes [sic] of greenhouse gases into the air. On the ocean leg alone, a retailer would reduce GHG emissions by 99% sending cargo by ship instead of plane. Using this method, a retailer could send 101 full containers by ship and still emit fewer GHGs than one container sent by plane.
So ships are cleaner than air transit, too. And what if we could make ship transit cleaner, with greener fuels and such?
All of this brings me back to my new question. If ship transport is relatively green (and we could likely make it greener), and we can run ships all around the world and ship things in containers for relatively low costs, would it be better from a carbon emissions perspective to build all the parts near an assembly site for a product in China and ship it here, or build parts around the world and assemble it in the US? This presumes, of course, that we cannot convince manufacturers to both build the parts and assemble them in the US, which seems to be an industrial model that has gone the way of the dodo bird for economic reasons.
The implications seem vast to me for our industrial areas, both for how we conceive of them in economic and environmental terms in this global age. If the shipping container has changed the economics of manufacturing (anyone interested in this must read Marc Levinson's excellent The Box: How the Shipping Container Made the World Smaller and the World Economy Bigger), might it also change the environmental aspects of manufacturing, too? And if so, what might this mean for our city's industrial areas, and in particular, how we contemplate their environmental footprints? I'd be curious if anyone has studied this particular issue.
Stephen R. Miller
Monday, May 28, 2012
Yesterday I took my kids to see The Avengers, the ensemble superhero movie featuring Ironman, Thor, Captain America, and The Hulk. But before all the world-saving action started up, I caught a throwaway line from the Gwyneth Paltrow character who plays Robert Downey Jr.'s assistant/girlfriend-- referring to their "Stark Tower" skyscraper in midtown Manhattan (powered by some futuristic sustainable energy source, natch) and their plans to build several more, she notes that she was planning to spend the next day "working on the zoning" for the other towers. I made a mental note that this could be a humorous, quick blog post reaffirming my theory that there is a land use angle to everything, and then proceeded to watch the superheroes smash it out with the bad guys to my son's delight.
But just now, the majesty of the Internet has shown me how badly I've been beaten to the punch. Via our Network colleagues at the Administrative Law Prof Blog, I found a link to a blog called Law and the Multiverse: Superheroes, Supervillans, and the Law, which has a blog post--nay, a 1,500+ word essay!--on this very subject called The Avengers: Arc Reactors and NYC Zoning Laws. This is unbelievable--from the same offhand script line that set off my land-use radar, the author delves deep into the New York City zoning code, citing chapter and verse of the regulations; identifies where Stark Tower is on the maps (all with copious linkage); and then explains the legal options available to our developer/hero:
I. Stark Tower’s Zoning District
As it happens, we know exactly where Stark Tower is meant to be located within New York: it’s built on the site of the MetLife building at 200 Park Ave.
(Update: Early on some sources indicated that it was built on the site of the MetLife building and now others indicate that Stark built the tower on top of the preexisting building. This doesn’t change the analysis. Whatever the zoning status of the MetLife building, the construction of Stark Tower was likely a “structural alteration” of the building that would disallow a grandfathered nonconforming use. It certainly exceeded the kind of “repair or incidental alteration” that would preserve the nonconforming use.)
Here’s a zoning map of the area. As you can see, it’s in a C5-3 commercial district in the Special Midtown District, which means Stark Tower has a maximum Floor Area Ratio of 18 (3 of that comes from the special district). Basically this means that if the building takes up its entire lot then it can only have 18 full-size floors (or the equivalent). There are various ways to increase the FAR, such as having a public plaza on the lot. The sloped, tapering structure of Stark Tower means that it can have more floors without exceeding its FAR because the upper floors are much smaller than the lower ones. Given the size of the 200 Park Ave lot, it’s believable that Stark Tower could be that tall, given its shape and the various means of increasing the FAR.
Stark mentions that the top ten floors (excluding his personal penthouse, presumably) are “all R&D.” Is that allowed in a C5-3?
Apart from residential uses, the permitted commercial uses in a C5 are use groups 5 (hotels), 6, 9 and 10 (retail shops and business services) and 11 (custom manufacturing). Unfortunately, research and development is not allowed as a permitted or conditional use in this district. In fact, scientific research and development is specifically allowed in a C6 as a conditional use, which requires a special permit and approval from the City Planning Commission.
So Stark needs some kind of special dispensation. How can he get it? There are many possible ways.
The essay goes on to analyze the options for rezoning, variances, and the related issues of electrical power generation permits and FAA approval, again chock full o' links to the statutes, regs, and caselaw. The author, James Daily, concludes that "while Pepper Potts may indeed have to do some work to get the next few buildings approved, it’s not far-fetched from a legal perspective." Read the whole thing, it's wild, and quite sophisticated too.
But I will draw this even more compelling conclusion: Even the world's greatest Superheroes are no match for the awesome power of the Zoning Code and the Planning Commission.
Tuesday, May 22, 2012
How can you pass up a document called "Beware the Dark Side of Trees?"
K.K. DuVivier recently posted a very helpful document about planting trees in a way that does not reduce the potential passive solar heating you can get for your home. It even comes with helpful diagrams. Who knew a law professor could produce something so practical!
Here is DuVivier's abstact:
Everyone loves puppies, and everyone loves trees. But just as we had to learn to curb and clean up after our dogs, we now need to learn to become responsible tree owners. Many of today’s well-intentioned tree-planting programs ignore the dark side of trees that threaten green energy solutions such as urban gardens, buildings with passive solar designs, solar hot water, and solar-generated electricity systems.
This short pamphlet (one 2-sided page with illustrations) is an attempt to alert everyone to be aware of the dark side of any tree you plant — both the planting location and the shade footprint. Otherwise, any carbon-capture gains from the new trees may be offset by the increased fossil-fuel burned to replace the clean solar energy lost.
Friday, May 18, 2012
The Big Apple is now greener than ever. On April 30, the New York City Council adopted some significant changes to its zoning code designed to promote distributed renewable energy and green building practices. These Green Zone Amendments will make it easier for New Yorkers to gain city approvals for small wind turbines, green rooftops, solar energy installations, skylights, and similar sustainable land uses on their properties. The NYC Department of City Planning has posted some short descriptions of the amendments on its website.
Among these new amendments are provisions that encourage rooftop wind turbines on tall buildings and that relax height and other restrictions for solar panels. It will be interesting to see whether the amendments are able to spur a major increase in small-scale wind and solar energy development in New York City in the coming years.
To read a New York Times interview of an NYC city planning official and real estate developer on the potential impact of these new amendments, click here.
Wednesday, May 2, 2012
Many thanks to Matt for inviting me back as a guest blogger! If nothing else, a bit of blogging will provide me a productive distraction this month from grading spring semester exams. Matt and the entire team of editors continue to do an outstanding job with the blog, and it’s absolutely one of my favorite morning reads.
I’ll use my first post to respond to Matt’s half-joking question: why should a land use prof spend time thinking about the space above land? After all, airspace rights receive scant attention in most land use casebooks. Discussions of airspace rights might seem better suited for a course on aviation law. Land use profs should stay down in the dirt, right?
Not necessarily. Over the past few years, I've managed to convince myself that some of the most perplexing and unsettled land use conflicts of the day involve the oft-forgotten space just above the surface of land.
For me, it all began while I was still practicing at a large law firm in Seattle. Our wind energy developer client approached us with a puzzling question: can a landowner be liable for stealing a neighbor’s wind? The client and a competing developer had leased adjacent parcels for wind farms. Our client wanted to install a wind turbine immediately upwind of one of the competitor’s turbine sites that was situated just on the other side of their common property boundary line. If both turbines were installed, the turbulent “wake” from the upwind turbine would render the downwind turbine largely ineffective. Only one of these two prime turbine sites could be profitably developed. Under the law, who should prevail in this dispute over wind – the upwind party or the downwind party?
While I was wrestling with that question, I stumbled upon the topic of solar access--a similar sort of airspace use conflict that involves solar energy devices instead of wind turbines. Should landowners be liable when trees or buildings on their parcels shade a neighbor’s solar panels? Laws Wyoming and New Mexico effectively give solar energy users strong legal protections against shading—“solar rights”—drawing analogies to water law’s prior appropriation doctrine. But these analogies to water law are misguided, ignoring neighbors’ longstanding rights in the airspace above their land. Better governance rules are needed for these conflicts that are capable of balancing policymakers’ general interest in promoting solar energy with the existing airspace rights of neighbors.
These wind and solar energy disputes over airspace are just two examples of how airspace is playing an increasingly crucial role in the sustainability movement. Vertical construction and infill development that occupy additional airspace continue to be significant strategies for curbing suburban sprawl, and city-based tree planting programs are occupying more urban airspace as well. At the same time, planners and sustainability advocates are pushing other strategies that require that more airspace be kept open. For example, city-sponsored urban gardens need significant amounts of un-shaded sunlight to thrive, and even LEED certification standards award points for natural lighting designs that often rely on skylights, windows, and minimal shade. When combined with the solar and wind energy uses of airspace mentioned above, these developments are collectively generating an unprecedented level of competition for scarce airspace.
In summary, I think that airspace is very much a topic worth covering in a land use course. There is reason to believe that the challenge of crafting policies that can fairly and efficiently govern airspace conflicts is only beginning and will continue to vex policymakers and legal scholars well into the future.
Tuesday, May 1, 2012
First, a great big thank you to guest-blogger Jerrold Long. Jerry will be wrapping up his guest stint this week, but he is more than welcome back anytime. I know I speak for my colleagues and our readers when I say that Jerry contributed the most interesting and thoughtful posts to this blog during the month of April.
Next, I am thrilled to announce that Troy A. Rule, land use prof from the University of Missouri, will be rejoining us for the month of May. After his terrific guest-blogging service last May, we're thrilled to welcome him back. From his Missouri facutly bio page:
Professor Rule joined the law faculty as an Associate Professor of Law in 2009. Prior to entering law teaching, he was an attorney at K&L Gates LLP in Seattle, where his practice focused primarily on commercial real estate transactions and wind energy development.
Professor Rule graduated summa cum laude with a B.S. in economics from Brigham Young University in 2001. He graduated with honors from the University of Chicago Law School in 2005, where he served on the Chicago Journal of International Law and was awarded a John M. Olin Student Fellowship in Law & Economics.
Before attending law school, Professor Rule was a credit manager at a finance company and taught a preparation course for the Law School Admission Test (LSAT). Professor Rule’s research focuses primarily on renewable energy and property law. He teaches Land Use, Secured Transactions, Sales & Leases, and Real Estate Transactions and was awarded the Gold Chalk Award for Excellence in Teaching in 2011.
Now, Troy has published a remarkable string of articles on solar access, wind rights, and airspace. My only question is why does a land use prof focus so much on the space above the dirt? Of course it's all critically important, and we're very much looking forward to hearing from Troy this month.
Friday, March 16, 2012
Troy A. Rule has a very interesting article up: Airspace and the Takings Clause, forthcoming in the Washington University Law Review. The abstract:
This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.
Troy, our excellent guest blogger, has written before about sun, wind, and air, so this article is coming from one of the emerging experts in property rights above the dirt.
Thursday, February 23, 2012
Wind power… it’s sustainable … it burns no fossil fuels…it produces no air pollution. What’s more, it cuts down dependency on foreign oil. That’s what the people of Meredith, in upstate New York first thought when a wind developer looked to supplement the rural farm town’s failing economy with a farm of their own -- that of 40 industrial wind turbines. WINDFALL, a beautifully photographed feature length film, documents how this proposal divides Meredith’s residents as they fight over the future of their community. Attracted at first to the financial incentives that would seemingly boost their dying economy, a group of townspeople grow increasingly alarmed as they discover the impacts that the 400-foot high windmills slated for Meredith could bring to their community as well as the potential for financial scams. With wind development in the United States growing annually at 39 percent, WINDFALL is an eye-opener that should be required viewing for anyone concerned about the environment and the future of renewable energy.
Monday, January 9, 2012
Uma Outka (Kansas) has posted an essay called The Energy-Land Use Nexus, forthcoming in the Journal of Land Use & Environmental Law, 2012. The abstract:
This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.
Saturday, December 31, 2011
As we head into the New Year, The Urban Land Institute has also been looking ahead at the future of land use. ULI recently issued its report What's Next? Real Estate in the New Economy. From the press release:
A new economy is unfolding over the course of this decade, driven by an extraordinary convergence of demographic, financial, technological and environmental trends. Taken together, these trends will dramatically change urban planning, design and development through 2020, according to a new report from the Urban Land Institute (ULI).
What’s Next? Real Estate in the New Economy outlines how every aspect of living, working and connecting will change in major ways, driven in large part by the values, preferences and work ethic of Generation Y, the largest generation in American history. . . .
Among the report’s findings:
- Technology will reshape work places. Office tenants will decrease space per employee, and new office environments will need to promote interaction and dialogue. Offices will be transforming into meeting places more than work places, with an emphasis on conference rooms, break areas and open configurations. Developers will craft attractive environments to attract young, talented workers.
- Major companies will value space that enables innovation. They will continue to pay more for space in a global gateway served by a major international airport, or in 24-hour urban centers. Hard-to-reach suburban work places will be less in demand.
- The influx of Generation Y, now in their teens through early thirties, will change housing demand. They are comfortable with smaller homes and will happily trade living space for an easier commute and better lifestyle. They will drive up the number of single households and prompt a surge in demand for rentals, causing rents to escalate.
- For most people, finances will still be constrained, leading to more shared housing and multi-generational households. Immigration will support that trend, as many immigrants come from places where it is common for extended families to share housing. This may be the one group that continues to drive demand for large, suburban homes.
- The senior population will grow fastest, but financial constraints could limit demand for adult housing developments. Many will age in place or move in with relatives to conserve money. Developers may want to recast retirement communities into amenity-laden “age friendly” residences. Homes near hospitals and medical offices will be popular, especially if integrated into mixed-use neighborhoods with shops, restaurants and services.
- Energy and infrastructure take on greater importance. Businesses cannot afford to have their network connections down, and more will consider self-generated power or onsite generator capacity. Developers, owners and investors are realizing that the slightly higher costs of energy- and water-saving technologies can pay for themselves quickly, creating more marketable and valuable assets. Ignoring sustainability issues speeds property obsolescence.
You can download the full report here.
December 31, 2011 in Architecture, Clean Energy, Density, Development, Downtown, Environmentalism, Finance, Green Building, Housing, Planning, Property, Real Estate Transactions, Redevelopment, Scholarship, Smart Growth, Suburbs, Sustainability, Transportation, Urbanism, Water | Permalink | Comments (0) | TrackBack (0)