Solar Skyspace B
University of Denver Sturm College of Law
November 1, 2013
Minnesota Journal of Law, Science & Technology, Forthcoming
U Denver Legal Studies Research Paper No. 14-06
The cleanest source of electricity is that generated from photovoltaic solar panels (PV). Unlike fossil fuels, PV does not require extraction and does not burn, so it emits no carbon. Unlike hydropower, it does not require the damming of natural rivers and the destruction of upstream areas through flooding. And even unlike industrial-scale concentrating solar thermo-electric power, it does not consume water to generate electricity. Finally, when placed on existing rooftops in developed areas, distributed solar PV does not require long-term dedication of public lands to an industrial use, does not disrupt native habitat (a potential problem with all of other energy generation resources), and provides power right where it is needed without requiring the construction of new transmission lines.
Because of PV’s advantages, one might think that state legislators or courts would give fledgling solar PV some of the many property law benefits that older energy sources have enjoyed. In fact, the current legal system does just the opposite — creating hurdles to the deployment of solar PV by placing all burdens on the solar-energy host side of the scale.
This article will first explain the technological need for solar access. Next it will review the rise and fall of U.S. laws addressing the problem from the late 1970s until today. Finally, it will examine property law regimes that could strengthen protections for this valuable right. While the common law could provide some remedies, the most efficient remedies appear to be through legislative action — either through federal or state statutes or local government regulations or ordinances.
Because grid-connected solar provides broad social benefits beyond those just to the property upon which solar collectors are installed, throughout this article, I will use the neutral terminology of “Solar Host” for the property on which a grid-connected solar PV array is directly sited and “Southern Property” for a property to the south which is within the solar skyspace of an array.
Number of Pages in PDF File: 41
Date posted: November 2, 2013 ; Last revised: June 3, 2014