Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy
58 Pages Posted: 11 Oct 2010 Last revised: 22 Mar 2015
Date Written: October 11, 2010
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.
Keywords: Climate Change, Natural Resources, Solar, Wind, Renewable Energy, Property Rights, Water Law, Prior Appropriation, Mining Law, Land Use Planning, State Permitting, Public Lands
JEL Classification: K11, K32, L72, Q2, Q3, Q4, R52
Suggested Citation: Suggested Citation
By Orin Kerr