Solar energy vs. shade - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 106

for the consequent loss of their airspace rights. 45 Once landowners receive
one of these permits, their neighbors are prohibited not only from growing
trees that would shade the system but also from erecting buildings or other
structures that would shade it. These policies generate efficient outcomes
only in cases where keeping airspace open to protect solar access is more
socially valuable than allowing trees or buildings within that space.
First-in-time rules for solar access and the fallacy of “solar rights”
Some solar access statutes frame these conflicts in a different way but are
ultimately prone to creating the same sorts of suboptimal outcomes as the
Massachusetts law just described. Among these are statutes that charac-
terize solar access as a property right in and of itself, akin to water rights
in some western U.S. states. The following article excerpt describes the
shortcomings of these other, well-intended state laws.
In New Mexico and Wyoming, a landowner can unilaterally acquire
solar access rights across Neighbors' airspace, without compensating
Neighbors, by being the first to make “beneficial use” of the airspace.
A landowner who installs a qualifying solar collector, records a valid
solar right instrument or declaration with the county clerk, and
satisfies statutory neighbor notice requirements under these statutes
acquires “solar rights.” Solar rights acquired under these statutes are
not rights in sunlight itself or in some other scarce resource for which
private property rights did not previously exist. The New Mexico
and Wyoming statutes define a “solar right” as a property right to
an “unobstructed line-of-sight path from a solar collector to the sun”
which “permits radiation from the sun to impinge directly on the solar
collector.” In essence, a solar right is an easement across a Neighbor's
airspace for the specified purpose of solar access. New Mexico's statute
even has language requiring that a solar right be “considered an
easement appurtenant.”
In solar access disputes in New Mexico and Wyoming, “priority in
time” supposedly “[has] the better right.” Unfortunately, solar access
conflicts are rarely disputes over competing solar access easements
in which one Solar User erects a solar collector in the solar access
path of another Solar User. Instead, such disputes are almost always
between Solar Users seeking to obtain or enforce solar access rights
and Neighbors with no interest in installing solar collectors who
seek only to preserve existing airspace rights. In nearly every circum-
stance, Neighbors were “first-in-time” with respect to the Airspace
Entitlement because they hold title to the surface estate directly below
the airspace at issue. Although the New Mexico and Wyoming statutes
are a well-intended effort to innovatively promote solar access, they
ignore Neighbors' existing airspace rights and misapply the prior