Saturday, October 23, 2010

Klass on Climate Change, Natural Resource Development, and Renewable Energy

Alexandra B. Klass (Minnesota) has posted Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy, forthcoming in the Ecology Law Quarterly.  The abstract:

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement.

Matt Festa

October 23, 2010 in Climate, Environmental Law, Property Rights, Scholarship, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 17, 2010

Abandoned Farmland Slated for Solar Project

According to a recent story on NPR's Morning Edition, California has recently declared one of the most ambitious targets for renewable energy in the world - 1/3rd of its electricity from renewable sources by 2020.  (Sadly, Georgia has no currently goal.  No Southeastern state has, except North Carolina.)  However, like Cape Wind, struggles continue over siting renewable energy projects - like this solar project proposed in Central California.

However, according to a recent story in The New York Times, there are places where the siting of solar projects is popular with pretty much everybody - on abandoned agricultural land.

Thousands of acres of farmland here in the San Joaquin Valley have been removed from agricultural production, largely because the once fertile land is contaminated by salt buildup from years of irrigation.

But large swaths of those dry fields could have a valuable new use in their future — making electricity.

Farmers and officials at Westlands Water District, a public agency that supplies water to farms in the valley, have agreed to provide land for what would be one of the world’s largest solar energy complexes, to be built on 30,000 acres.  At peak output, the proposed Westlands Solar Park would generate as much electricity as several big nuclear power plants.

It's interesting that one environmental problem - saltwater intrusion from overpumping of the coastal aquafers - might contribute to another environmental solution - reduction of dependence on coal-fired power plants.  Anyway, it's nice to see a non-controversial renewable energy project, for a change.

Jamie Baker Roskie

August 17, 2010 in California, Clean Energy, Environmentalism, Georgia, State Government, Water, Wetlands, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

Alexander on Wind Energy in Texas

Alan J. Alexander (JD Candidate, Michigan) has posted The Texas Wind Estate: An Argument for the Recognition of the Wind as a Natural Resource and a Severable Property Interest.  The abstract:

As a renewable resource, the wasteful practices in the development of wind energy raise different concerns and come in different forms than waste in the oil and gas industry. Nonetheless, waste of the wind is no less harmful than the waste of oil if the underlying policy goal of the state is to maximize the use of its energy resources. To maximize the use of the state’s energy resources, the state needs the power to regulate the wind to mitigate wasteful practices, and landowners need a property interest that they can market or exploit and that the courts can recognize and protect. Yet, it is unclear if the state has full regulatory power over the wind, or if wind ownership is incident to land ownership. Thus, to address these issues will require the resolution of at least three legal questions, the answers to which are essential to the course of development of wind energy in the state of Texas.

The first question is whether the wind is considered a “natural resource” like oil or percolating water, such that the legislature can pass laws to regulate it under Article XVI, Section 59 of the Texas Constitution. The next question is whether the wind is subject to ownership in the state of Texas. The wind blowing over one’s land could be subject to ownership in Texas under common law in a manner analogous to the theory of percolating water, a theory of ferae naturae, a unified fee theory of ownership, or surface water law. The final question that must be answered is whether a landowner’s interest in the wind that flows over his land is severable from the surface estate. Despite the lack of legislative and judicial guidance on this question, wind leases in Texas are typically written as if wind rights are severable. Yet it is unknown if Texas courts will recognize the severability of a wind estate. 

This Note argues that the Texas Legislature should pass laws clarifying that the wind is a natural resource, and that in order to promote “[t]he conservation and development” of the wind as a natural resource, the legislature should statutorily recognize wind rights that are a severable interest in land ownership. Part I offers a brief comparison of the early wasteful history of the oil and gas industry in the state of Texas with the early development of the Texas wind industry, and discusses the problem of waste of the wind. Part II addresses whether the wind is a natural resource, the legal theories that could support a property interest in the wind, and the debate as to whether those wind rights should be a severable interest. Part III lays out the argument in support of the Texas Legislature enacting laws to clarify that the wind is a “natural resource” under the Texas Constitution, that there is a recognized property interest in the wind, and that the interest is severable. The Note concludes by summarizing the necessity of clarifying wind energy law, and the benefits of doing so for the development of wind energy in Texas.

Matt Festa

May 17, 2010 in Environmental Law, Property Theory, Scholarship, State Government, Texas, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

Salkin on Renewable Energy and Land Use Regulation

Patricia Salkin (Albany) has posted a two-part piece on SSRN: Renewable Energy and Land Use RegulationALI-ABA Business Law Course Materials Journal, p. 47, February 2010.  Here is the link to Part 1 and its abstract:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

Part 2 and abstract:

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Very relevant and timely.

Matt Festa

April 13, 2010 in Clean Energy, Environmental Law, Green Building, Local Government, Oil & Gas, Property, Scholarship, State Government, Wind Energy | Permalink | Comments (1) | TrackBack (0)