Renewable Energy and the Neighbors

Small wind turbines and rooftop solar panels are a highly attractive energy option, capable of generating clean, renewable power without the need for transmission lines across vast stretches of rural land. State and federal incentive programs have made these devices increasingly affordable for landowners in recent years, generating an unprecedented level of interest in “distributed” renewable energy.Unfortunately, small wind turbines and solar panels are often far less attractive in the eyes of neighbors, who fear that the systems will erode neighborhood aesthetics and property values. Despite aggressive state and federal programs aimed at promoting renewable energy systems, land use controls at the local level often discourage landowners from installing the devices. To combat this problem, statutes in a growing number of states invalidate local restrictions on distributed renewable energy. These broad preemptive statutes overcome neighborhood barriers, but they also suppress local participation in land use regulation and ignore community-specific issues and concerns.This article analyzes conflicts between states and communities over land use laws that restrict distributed renewable energy. Framing these conflicts as clashes over scarce “entitlements” to regulate, the article explores the possibility of using liability rule-like approaches to more efficiently allocate these entitlements between states and local governments. Based on the analysis, the article advocates a scheme that would offer “Green Community Tax Credits” to landowners in communities that voluntarily accommodate distributed renewable energy in their land use controls. The tax credit system would strengthen incentives for communities to allow distributed renewable energy but would permit each community to weigh its own unique costs and decide the issue, promoting more flexible and efficient policymaking

Entitlement-Shifting Rules

This Article describes and analyzes entitlement-shifting rules: laws that initially assign a legal “entitlement” to one party and subsequently reassign the same entitlement to a different party. Guido Calabresi and Douglas Melamed’s classic framework of property rules and liability rules involves two basic steps that yield four possible combinations of entitlement assignments and protective rules. These combinations are conventionally numbered in a particular order as rules one through four. Over the years, numerous scholars have built upon Calabresi and Melamed’s four-rule structure with add-on rules that tweak the model’s second step of assigning property or liability rule protection. By contrast, academicians have devoted far less attention to what this Article calls “entitlement-shifting rules”—rules that involve variations on the model’s first step of assigning the entitlement. Although government actors routinely shift entitlements in legitimate and useful ways, some types of entitlement shifting—especially certain laws and actions that shift core property entitlements—are difficult to defend on efficiency or equity grounds. This Article sets forth principles for identifying and analyzing entitlement-shifting rules, applies those principles to examine a diverse set of real-world examples ranging from civil asset forfeiture laws to proposed drone regulations, and describes some basic strategies for deterring the most costly and unjust forms of entitlement shifting. By drawing attention to entitlement-shifting rules and their impacts, this Article paints Calabresi and Melamed’s model in a revealing new light and provides additional perspective on some of the core deficiencies of modern takings laws

Airspace and the Takings Clause

This Article argues that the United States 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 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. This Article also 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 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

Shadows on the Cathedral: Solar Access Laws in a Different Light

Unprecedented growth in rooftop solar energy development is drawing increased attention to the issue of solar access. To operate effectively, solar panels require un-shaded access to the sun’s rays during peak sunlight hours. Some landowners are reluctant to invest in rooftop solar panels because they fear that a neighbor will erect a structure or grow a tree on nearby property that shades their panels. Existing statutory approaches to protecting solar access for such landowners vary widely across jurisdictions, and some approaches ignore the airspace rights of neighbors. Which rule regime for solar access protection best promotes the efficient allocation of scarce airspace, within the constraints of existing law? This Article applies Calabresi and Melamed’s “Cathedral” framework of property rules and liability rules to compare and analyze existing solar access laws and to evaluate a model solar access statute recently drafted under funding from the US Department of Energy. Surprisingly, the Article concludes that a statute implementing the Cathedral model’s seldom-used “Rule Four” is best suited for addressing solar access conflicts

Airspace in a Green Economy

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners\u27 airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners\u27 existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability

Drone Zoning

The growing popularity of small civilian drones has generated a wide array of complex and unprecedented regulatory challenges. Many of these challenges, such as keeping drones away from manned aircraft, are matters that the Federal Aviation Administration (“FAA”) is clearly authorized and well equipped to address. However, several other drone policy challenges relate solely to drones’ potential to disrupt landowners’ privacy and to otherwise interfere with activities on the ground. The nature and severity of these conflicts often varies greatly depending on a drone’s specific location; drone uses that are welcomed in some city neighborhoods may be prohibitively disruptive in others. The FAA, a centralized federal agency, lacks the information and resources necessary to effectively regulate these inherently local drone use issues. Recognizing this fact, cities and states are increasingly crafting their own drone laws. Soon, some municipalities might even find it beneficial to adopt drone zoning ordinances that specifically restrict where, when, and under what conditions civilian drones may fly within their jurisdictions. Unfortunately, the FAA has taken the position that it holds extremely broad regulatory authority over nearly every aspect of civilian drone activity—a position that threatens to preclude the development of valuable state and local drone policies. What aspects of drone activity could be better regulated at the state or local level than at the federal level? And what principles should guide municipal governments as they craft drone policies for their own communities? This Article tackles these questions, highlighting the potential merits of greater state and local involvement in drone law and identifying foundational principles and concepts for the pioneering design of drone zoning ordinances

Solar Energy, Utilities, and Fairness

This Article analyzes the primary fairness arguments that utilities are leveling against net metering programs and electricity rate designs as rooftop solar energy expands across the country. By categorizing and more thoroughly evaluating these arguments, this Article seeks to enhance the dialogue between utilities, legislators, state regulators, and the solar energy industry over how to best orchestrate the nation’s shift toward more sustainable electricity strategies. Part II of this Article describes how net metering programs and other factors are spurring dramatic growth in distributed solar energy generation in the United States and how utilities are increasingly lobbying for policy changes that would slow this trend. Part III highlights the conspicuous role that simple fairness arguments are playing in utilities’ campaigns against distributed energy-friendly policies. Part III also describes research by Professor Steven Shavell and Professor Louis Kaplow that questions the propriety of fairness arguments in policy analysis. Shavell and Kaplow argue that claims of unfairness can be counterproductive distractions in the formulation of policy and thus recommend that decision-makers thoroughly examine fairness-based arguments before allowing them to shape legislative, regulatory, or judicial decisions. Part IV of this Article seeks to apply these scholars’ approach, analyzing fairness-based arguments against net metering and existing rate designs as they relate to three distinct groups: (i) utility customers who have no solar panels, (ii) utility customers with low incomes, and (iii) utilities themselves. This Article ultimately argues that general appeals to fairness are detrimental in policy debates involving distributed solar energy. Shunning fairness arguments in favor of clearer, more specific arguments would benefit decision-makers as they search for solutions to the complex policy challenges associated with transitioning to a more sustainable electricity system

Property Rights and Modern Energy

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

Using Norms to Change International Law: UN Human Rights Laws Sneaking in Through the Back Door

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law. In recent years, however, human rights groups have advocated that the United Nations (“UN”) create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless--until now.On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (“Norms”). In March and April of this year, the fifty-three-member UN Human Rights Commission will vote regarding whether to adopt the Norms into international law. At first glance, the Norms seem benign. The document is not directly binding against corporations and has been described by some of its drafters as a mere restatement of existing international human rights laws. A deeper look at the Norms, and the context in which they were drafted, however, reveals that they may be the first major stepping stone toward the adoption of an international, enforceable set of legal obligations binding on transnational corporations (“TNCs”).This Development explores possible long-term effects of the Norms on international businesses by briefly (1) describing historical events leading up to the Norms, (2) summarizing the Norms\u27 controversial content and commentaries, (3) noting what organizations both for and against the Norms are saying about the document, and (4) analyzing the Norms from legal, economic, and political perspectives