Tuesday, November 20, 2012
Rule on Property Rights and Energy
Troy Rule (Missouri) has posted Property Rights and Modern Energy (George Mason Law Review) on SSRN. Here's the abstract:
Property
law has evolved and adapted throughout its existence in response to
social and technological change. In this era of increasing focus on
sustainable energy, new property rights disputes arising from
innovations in the energy industry are once again stretching the bounds
of property law. As novel energy strategies spread across the country,
they are raising complex property questions involving wind currents,
sunlight, deep underground mineral deposits, airspace, subsurface pore
space, and other resources.
Resource governance regimes that
reflect the unique characteristics of emerging energy technologies can
play a valuable role in the nation’s continued pursuit of energy
sustainability. Unfortunately, despite volumes of legal scholarship on
the evolution and structuring of property rights regimes, there is
little consensus among lawmakers or within the legal academy regarding
how best to adapt such regimes to modern energy innovation. Courts and
legislatures are increasingly feeling pressure to alter long-established
property arrangements to accommodate and encourage new forms of energy
development. At what point do these adjustments go too far, excessively
compromising fairness and efficiency goals in an effort to promote a
new energy strategy?
This short article, written for a joint
program of the Natural Resources and Energy Law and Property Law
Sections of the American Association of Law Schools at the Association’s
2013 Annual Meeting, offers some general guidelines for adjusting
property rights regimes to accommodate new energy innovations. This
article suggests that, when feasible, policy actions that merely clarify
ambiguities in existing law are often the simplest and most
cost-effective way to respond when important technological advancements
place pressure on longstanding property structures. When such policies
are inadequate or unavailable, the most equitable and efficient
adjustments to property arrangements tend to be those that respect
rather than disregard property owners’ existing entitlements.
Steve Clowney
https://lawprofessors.typepad.com/property/2012/11/rule-on-property-rights-and-energy-.html