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Tuesday, September 29, 2009

Bronin on Solar Rights and Modern Lights

Sara C. Bronin (U Conn) has posted two related articles on SSRN.  The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

The second is Modern Lights:

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

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