Property Rights on the New Frontier

Abstract

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create solar easements, wind easements and other property rights in renewable resources to help achieve climate change and energy independence goals. One challenge for developing theoretical and policy frameworks in this area is that property rights have played an important role in both natural resources law and pollution control law, and while climate change invokes both fields, the role of property rights in each 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 first developed in the 1970s 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 solar and wind energy on private lands, it will be important not to rely too heavily on a traditional 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 solar development and wind development on private lands present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development be structured based on private solar easement transactions within a hospitable local zoning framework while wind development be based on a statewide siting and permitting structure with less local government involvement.