Solar energy vs. shade - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 103

the landowner who invests in solar collectors and to a society which
has an interest in developing alternative sources of energy … Courts
should not implement obsolete policies that have lost their vigor over
the course of the years. 24
Concluding that it was conceivable for there to be a nuisance claim based
on “unreasonable obstruction of access to sunlight” in the new solar energy
age, 25 the court refused to grant summary judgment against Prah.
The dissenting justice in Prah took a very different view of the case. He
pointed out that Maretti's proposed home complied with all applicable
building and zoning laws, which did not require any consideration of
shading of neighboring properties. 26 He also emphasized, as described in
Chapter 1 of this topic, that landowners hold property interests in the
airspace above their land under the ad coelum doctrine and that forbidding
Maretti to build the home within that airspace would violate his property
rights. 27 Of course, these arguments ultimately failed, and the case was
published suggesting that nuisance law may be broad enough to encompass
the shading of a solar energy system in some circumstances.
The majority holding in Prah created a stir in legal and policy circles
for its seeming deviation from longstanding U.S. law. However, few U.S.
courts elected to follow Prah 's reasoning in the decades following the
decision. Most remain unwilling to enforce solar access rights for solar
energy users absent a written agreement or statutory rules requiring such
enforcement.
Although United States' courts ultimately proved hesitant to adjust
airspace rights to promote sunlight access for solar panels, state and local
legislative bodies in the U.S. enacted a wide spectrum of solar access
protection laws in the late 1970s and early 1980s. Many of these laws
remain on the topics today. Unfortunately, as the following subsections
suggest, few of these statutes are very effective at governing solar access
conflicts.
Solar access protection gone too far: California v. Bissett and revisions to
California's Solar Shade Control Act
The state solar access statute that has garnered the most publicity in recent
years is California's Solar Shade Control Act (SSCA). 28 The California
state legislature enacted the SSCA in 1978, just two years after the state
first began offering generous tax credits for solar energy projects. 29 Under
the originally-enacted version of the SSCA, a landowner whose trees or
vegetation substantially shaded a neighbor's qualifying solar energy system
could be convicted of a public nuisance. 30 Those guilty of shading under
that 1978 version of the statute could be ordered to raze their trees or trim
their vegetation to stop the shading and could receive fines of up to $1,000
per day until they complied. 31