Land Use Prof Blog

Online Professional Development Course in Adaptive Planning & Resilience

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible.  It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented.  Students, professors, and other professionals are welcome too.  Thanks for your interest and help!  All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience.  This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships. 

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others.  I hope that you and the employees and/or members of your organization will consider enrolling in this course.

 The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning.  The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

 More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning.  This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course.  We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed. 

Please share this blog post or information with anyone who might be interested.  Please contact me at [email protected], if you have any questions. 

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods.  Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

 About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

 Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

• Brian      O’Neill, an aquatic ecologist and environmental planner in Chicago
• Heather      Kenny, a local-government and land-use lawyer in California and adjunct      professor at Lincoln Law School of Sacramento
• Sherry      Fuller, a business manager at the Irvine Ranch Conservancy in Orange      County, California, and former community redevelopment project manager
• Andrew      Black, who is Associate Dean of Career Planning and Applied Learning at      Eckerd College in St. Petersburg, Florida, and a former field      representative for two U.S. Senators in New Mexico
• Andrea      Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy      Development at the University of Louisville
• Jennifer-Grace      Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space      at the University of Denver
• Alexandra      Chase, a recent graduate of the Brandeis School of Law who has worked on      watershed and urban resilience issues with the Center for Land Use and      Environmental Responsibility and now lives in St. Petersburg, Florida.

Dates

October 12 – November 22, 2015,

Online, asynchronous, and self-paced

Cost

$150

For more information

Visit louisville.edu/law/flex-courses.

 

Wiseman on Urban Energy

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.  

Matt Festa

Missouri Law Conference on Promoting Sustainable Energy through Tax Policy

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
[email protected]

More Information on 2013 JESL Symposium

Matt Festa

Climate & Energy Law Symposium at USD

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.  

New Green Zoning Provisions in NYC

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.

Troy Rule

Things are (Literally) Looking Up

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.

Troy Rule

Hail and Farewell--Welcome Back Troy Rule

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. 

Matt Festa

Rule on Airspace and the Takings Clause

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. 

Matt Festa

Windfall--documentary on wind energy development

The documentary Windfall is making the rounds around the country.  Check out the Windfall trailer, it is very compelling.  The film's description:

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.

Matt Festa

Hoffman on Municipalities Banning Wind Power

Student Author Nicholas Hoffman of the University of Missouri-Kansas City has published COMMENT: A DON QUIXOTE TALE OF MODERN RENEWABLE ENERGY: COUNTIES AND MUNICIPALITIES FIGHT TO BAN COMMERCIAL WIND POWER ACROSS THE UNITED STATES

From the introduction:

This comment explores the legal nature of claims brought by landowners against zoning ordinances or other entities attempting to limit the use of private wind rights. Part II provides a discussion of the legal issues surrounding commercial wind energy and formulating wind as a property right connected to a fee simple interest in one's land. Part III discusses and explores recent cases furthering, stretching, and defining the legal issues. Finally, Part IV looks to the future implications and the horizon for wind energy in terms of its impacts on the surrounding world and how those impacts might shape the legal policies governing and defining wind rights. If wind energy is going to continue to grow, the interplay of incentive programs, tax credits, local government and community support, technological feasibility, and general unity in the law will need to interact on similar bases. 

I find this article particulary interesting because the UGA Land Use Clinic recently worked with the Georgia Wind Working Group and the Southern Alliance for Clean Energy to create a guidebook and model wind ordinance for local governments wishing to faciliate, rather than ban, small scale wind facilities.  Perhaps it's a matter of scope and scale - large scale wind facilities aren't particularly feasible in Georgia, and so we haven't had as much controversy over wind as other states.

Jamie Baker Roskie

Sean Nolon on Engaging Citizens in Siting Wind Turbines

Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, Cardozo Journal of Conflict Resolution, Vol. 12, p. 327, 2011. The abstract:

Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.

Matt Festa

Prairie Chickens: Another Challenge for Wind Energy Development

The Kansas Department of Wildlife is asking a wind energy developer to spend an extra $567 million to route its project’s power lines away from “lesser prairie chicken” mating areas.     

According to a Kansas City Star article published yesterday, the Department’s revised power transmission route would spare about 140 of the 20,000 to 40,000 lesser prairie chickens estimated to live in Kansas.  Based on those figures, the developer is being asked to spend about $4 million per prairie chicken saved.  An ordinary Kansas hunter can purchase a license to kill up to 40 of the birds for less than $21.   

Usually, conflicts between bird conservationists and wind energy developers center around the risk that birds or bats will suffer fatal collisions with turbines and towers.  Developers now tend to install wind turbines outside of migratory bird paths to help limit bird fatalities on wind farms. 

In contrast, wind turbines and transmission systems threaten prairie chickens by inhibiting the birds’ breeding activities.  A Bloomberg article from 2009 states that the species’ mating rituals involve an “elaborate dance” and suggests that “the chickens have learned to avoid such mating displays around structures like wind turbines or utility poles where predators may perch.” 

Based on the available information, revising the transmission route to steer clear of the chickens’ breeding grounds seemingly isn’t cost-justified in this case.  It will be interesting to see whether the Kansas Corporation Commission, which is deciding this dispute, reaches the same conclusion.

Troy Rule

Introducing Troy Rule

The Land Use Prof Blog is delighted to welcome its newest guest blogger, Professor Troy A. Rule.   Prof. Rule is an Associate Professor at the University of Missouri School of Law.  He teaches land use, secured transactions, and sales & leases, and his research focuses on renewable energy and property law.  He's an alum of BYU and Chicago and worked in the finance industry before a law practice in Seattle focused on commercial real estate and wind energy.

We've featured his scholarship several times on the blog, including Shadows on the Cathedral: Solar Access Laws in a Different Light; Renewable Energy and the Neighbors; and, most recently, Sharing the Wind.  His next piece is Airspace in a Green Economy, forthcoming in the UCLA Law Review.  He was also recently on a well-received panel at ALPS with some of our regular Land Use bloggers. 

It's a great privilege to introduce Troy and to add him to the list of outstanding new voices in land use law that we've been lucky enough to host here.  It's fantastic that he has volunteered to guest-blog during May, which is the month that most of us love to procrastinate by reading blogs, but are too busy grading to write very much.  So thanks to him for signing up!  On top of all of his scholarly accomplishments, Troy Rule might just have the single greatest name of any junior scholar in the legal academy.  We look forward to reading.

Matt Festa

Rule on Sharing the Wind

Troy Rule (Missouri) has posted another interesting paper: Sharing the Wind, from The Environmental Forum, Vol. 27, No. 5, pp. 30-33, September/October 2010.  The abstract:

Landowners today are increasingly selling or leasing to others the right to use the wind flowing across their land to generate electric power. For the first time in history, the right to capture wind in some areas of the country has become marketable and highly lucrative. This article describes landowner conflicts over the wind turbine wake interference in the context of commercial wind energy development. The article contrasts wind currents with water, oil, and wild animals and ultimately advocates an “option approach” to govern situations when neighbors compete with each other over scarce wind resources. 

Great title, too.  We hope to hear more from Prof. Rule soon. 

Matt Festa

Competing Mineral and Wind Rights

In my previous post, I mentioned that renewable energy law often raises property and land use issues.  For a recent example of legislative action in this area, see Oklahoma H.B. 1821, which, if enacted, would provide: "Any rights derived from a wind or solar energy agreement shall be subordinate in all respects to [oil and gas] exploration rights except to the extent consent is otherwise given . . . ."  The bill also would require a wind or solar developer to obtain prior written consent from "the owner of [oil and gas] exploration rights" in order for the developer to "diminish[], abrogate[], or interfere[] with" exploration rights, and the owners of oil and gas exploration rights would be allowed to grant or withhold consent "for any reason or no reason." Jeff Wilson, the Oklahoma Independent Petroleum Association (OIPA) Vice President of Governmental Affairs, notes that "the wind turbines and transmission lines popping up across western Oklahoma can make it tough to bring in oil and gas rigs," and he supports the bill.  A separate pending bill, S.B. 124, would also block wind developers from using eminent domain authority to acquire land.   The wind industry is understandably concerned about these developments, arguing that H.B. 1821 would halt most wind development in the state.

Professor Ernest Smith and Becky Diffen have a useful discussion of broader legal principles likely to emerge in mineral-wind surface disputes in their "Winds of Change" article in the Texas Journal of Oil, Gas, and Energy Law.  As Smith and Diffen point out, developers can avoid many of the conflicts anticipated by Oklahoma's bill through private contracting.  Oil or gas and wind developers can enter into an accommodation agreement, for example, wherein they agree to share roads for rigs and construction equipment and select specific locations for well and tower placement.  Regardless of the remedy chosen, mineral-wind disputes will likely expand in importance as renewables continue to grow, and these raise interesting questions for the classroom.  Will first-in-time principles continue to govern?  Who must "accommodate" whom under traditional common law doctrines? If a wind and mineral lease are acquired simultaneously, should one right have priority over another, or should the parties be required to negotiate from equal positions?  Many of the answers to these questions will likely depend on states' energy priorities.  In states with strong natural gas economies, like Oklahoma, gas development may maintain the upper hand despite the abundant winds that blow through the western portion of the state.   As the OIPA President has argued, "In Oklahoma law, the mineral estate is the dominant estate." If supporters of H.B. 1821 succeed, the law likely will reflect this position. 

Hannah Wiseman

Property and Renewable Energy

This semester, I have taught a Wind Energy course in the form of a writing seminar.  I should call this more of an experiment than a course, really--there's no textbook, of course, and in place of regular law review style papers, I have assigned my students to write pieces of a model wind energy code.  My  surprise in teaching the course has been the content that I have found to be most important.  I expected the course to be mostly about permitting, ratemaking, and other classic electricity-based issues, but each day, as I introduce my students to a new phase of the wind energy development process, I find myself teaching a Land Use and Property class. 

First, there is the challenge of finding a suitable site for a large wind development.  (I have focused on utility-scale developments in the course, although in the future I am determined to fit in distributed renewable issues, too.)  The location challenge is a big one:  for renewables, a developer needs two parallel estates.  First, she needs a strong wind resource, which I call a "fugitive estate" (or a "renewable estate" if one wants to more clearly differentiate wind from water, minerals, and wildlife).  Second, she needs a static land resource that's sufficiently free of competing uses to ensure that she can site large towers and turbines on the property.  Combining these estates into one neat package or "renewable parcel" is no easy task because strong winds do not cooperatively follow jurisdictional lines. A developer of one wind project often has to build a farm that straddles county or town lines and of course mutiple private property lines; she may even have to cross state lines, as the "Stateline" wind farm on the Washington-Oregon border has done.  Even where her development does not cross county lines, she also often must deal with several school districts, which impose different taxes.

In oil and gas development, law addresses the challenge of the combined fugitive-land estate through a combination of common law and state legislation.  Typically, an oil or gas developer leases just the mineral estate.  The developer then uses the surface to the extent necessary to economically produce the mineral estate; she does not have an express lease or even easement on the surface, but state legislation and the common law provide that she has the right to reasonable use of the surface.  Wind could potentially be moving in this direction--where a developer would acquire the rights to the wind flowing over properties and then use the surface as necessary to develop the resource.  But in many states, it does not appear to be, which may make sense. Wind technology, after all, is more permanent and land intensive than an oil or gas well, and perhaps it makes sense that some states require the wind developer to lease the surface.  But what happens when a wind developer with surface rights and/or wind rights wants to place a tower on the very spot planned for an oil or gas well?  Whose rights are superior?   Ernest Smith and Becky Diffen have a rich article that addresses these issues, suggesting that wind and oil and gas developers are typically contracting around this problem (at least in Texas) and that wind developers are indeed obtaining wind rights in hopes that courts will recognize these new rights if they are challenged in court--which they likely will be when a disgruntled surface owner buys a property only to discover that the wind rights have been sold away and towers will begin to be installed next month. In addition to Smith and Diffen's article, Lincoln Davies on the Environmental Law Prof Blog has recently alerted us to some new articles exploring the common law of renewables.

Once the developer finds a suitable site, she must of course obtain permission to build not just from the private property owners but also from the relevant land use authorities.  This process varies substantially by state, with states like Minnesota fully centralizing the process for wind developments of a certain size and states like Washington and Oregon allowing municipalities to regulate but collecting these municipal regulations within a centralized process (for projects beyond a certain size threshold) and ensuring compliance through this process, and states like Kansas leaving almost all siting authority to municipalities.

Finally, beyond the renewable parcel itself, there is the challenge of transmission, which merits a post of its own.  For now, I hope that I have persuaded you that Land Use and Property issues are central in the renewable realm and present interesting case studies in siting challenges.

-Hannah Wiseman

Klass on the Public Trust Doctrine and the Siting of Wind and Solar Projects

Alexandra Klass (Minnesota) has posted Renewable Energy and the Public Trust Doctrine, 44 UC Davis L. Rev. __ (forthcoming 2011).  Here's the abstract:

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? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.

Jim K.

Six Distributional Effects of Environmental Policy

Don Fullerton (Illinois-Finance) has posted Six Distributional Effects of Environmental Policy on SSRN.  Here's the abstract:

While prior literature has identified various effects of environmental policy, this note uses the example of a proposed carbon permit system to illustrate and discuss six different types of distributional effects: (1) higher prices of carbon-intensive products, (2) changes in relative returns to factors like labor, capital, and resources, (3) allocation of scarcity rents from a restricted number of permits, (4) distribution of the benefits from improvements in environmental quality, (5) temporary effects during the transition, and (6) capitalization of all those effects into prices of land, corporate stock, or house values. The note also discusses whether all six effects could be regressive, that is, whether carbon policy could place disproportionate burden on the poor.

Jim K.

See the Mojave!

John Copeland Nagle (Notre Dame) has posted See the Mojave! , 89 Ore. L. Rev __ (forthcoming 2011).  Here's the abstract:

This article examines how the law is being asked to adjudicate disputed sights in the context of the Mojave Desert. The Mojave is the best known and most explored desert in the United States. For many people, though, the Mojave is missing from any list of America’s scenic wonders. The evolution in thinking about the Mojave’s aesthetics takes places in two acts. In the first act, covering the period from the nineteenth century to 1994, what began as a curious voice praising the desert’s scenery developed into a powerful movement that prompted Congress to enact the CDPA. The second act begins around 2005, when the nation’s energy policy again turned to the potential of renewable energy. The Mojave is an obvious sight for large-scale solar energy development, but that supposedly green technology threatens many of the scenic values that Congress decided to protect in the CDPA.

The common theme that runs through this article is that the law needs to develop better ways to address the importance of visual perception of both natural and cultural sights. The sights of the Mojave Desert elicit different reactions from different people. Each of these reactions is both strongly held and reasonable, which challenges the law’s ability to accommodate them. The experience with desert preservation and the proposed solar facilities shows that the law needs to find a way to respect contrasting perceptions of the same things. Sometimes this can be achieved by putting the right thing in the right place. Often, though, the same sight that some people treasure is a sight that others find offensive. In such cases, we should prefer decision-making processes that solicit public involvement that first identifies those contrasting perceptions and then seeks to honor them. The role of public input is especially critical on government property, which characterizes most of the Mojave Desert. Congress has intervened to insure the appropriate response to the conflicting public perceptions for each of the three contested Mojave Desert sights. That congressional action and the attendant place-based lawmaking offer the best hope of honoring the contrasting perceptions of the sights of the Mojave.

Jim K.

[email protected]

Today - Wind Ordinances Webinar

The US Department of Energy is hosting a webinar today:

Wind Energy Ordinances Webinar
Date: 11/17/2010
Contact: Susan Hinnen, NREL
1:00 p.m. Mountain Time

Join us for a discussion on wind energy ordinances and new tools being developed by Wind Powering America partners to educate local planners.
Speakers

    * Tom Tuffy, PennFuture
    * Erica Heller, Clarion Associates
    * David Loomis, Illinois State University

The Wind Powering America team hosts live Webinars with participant Q&A on a variety of themes. Each Webinar will focus on a particular subject of interest to the Wind Powering America community and will feature special guest experts, summarize the latest research on siting and deployment issues, and provide a chance for you to share your own experiences, ask questions, and engage with the Wind Powering America network. The Webinars will be posted on the Wind Powering America Web site after the events.

Visit the website for access information.

Thanks to Rita Kilpatrick at Southern Alliance for Clean Energy for the heads' up.

Jamie Baker Roskie