36 Pages Posted: 25 Jun 2013 Last revised: 30 Oct 2013
Date Written: March 1, 2013
The extraction of fuels and the construction of electricity generation facilities in the twenty-first century (“energy development”) has generated property and land use-based, environmental, infrastructural, and social conflicts, which are likely to expand as we increasingly rely on domestic energy resources. 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.. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed.
As we tap these sources in ever more numerous locations, energy development bumps up against certain human population centers. The City of Fort Worth, Texas now hosts thousands of hydraulically fractured natural gas wells, and San Diego has more than 4,500 solar projects. And 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 electric vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As energy development becomes an integral part of certain population centers, the law will have to adjust, responding to land use and environmental disputes, nuisance claims, enhanced use of local infrastructure, and equity concerns related to unevenly distributed effects.
This Essay explores these growing themes in energy law, investigating how certain populated areas have begun to embrace their role as energy centers by addressing potential conflicts ex ante — in some cases creating clearer zoning and permitting systems, and using a combination of public and common law to balance the tradeoff between land-based energy demands and other needs. It also briefly proposes broader lessons for improving energy law based on the piecemeal approaches so far. Municipalities must address energy development in their comprehensive plans and zoning ordinances, and states must provide certain uniform standards for energy development but not preempt all local control or common law actions. Finally, all levels of government must carefully examine the unevenly distributed impacts of energy and ensure that those who bear the brunt of energy-related development have a meaningful say in the bargaining process that balances producers’ and others’ costs and benefits of energy development.
Keywords: hydraulic fracturing, shale gas, fracking, renewable energy, land use, NIMBY, population, property, oil and gas, mineral rights, surface rights, dominant estate, distributed generation, solar, wind, battery storage, environmental
Suggested Citation: Suggested Citation