Solar energy vs. shade - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 112

Merits of the Iowa approach
Iowa's approach of requiring landowners to pay fair value for involuntary
solar access easements obtained under its solar access statute does more
than just promote the fair treatment of neighbors and respect for their
existing airspace rights. This requirement also encourages optimal use of
the airspace involved in solar access conflicts. As discussed in Chapter
1 , airspace is a scarce, valuable resource and is playing an increasingly
important role in the sustainability movement. Solar access statutes like
Iowa's that include compensation requirements make it possible for all
landowners to obtain solar access protection, but incentivize them to do so
only when that is the highest and best use of that airspace.
To illustrate these efficiency benefits of including a compensation
requirement, consider again the solar access conflict in the California v.
Bissett case described earlier in this chapter. That case received media
attention because it pitted two “green” airspace uses against each other:
trees and solar access protection. In many jurisdictions throughout the
world, landowners like Mark Vargas who sought legal protection for their
new solar arrays would be at the mercy of neighbors to voluntarily sell
them that protection for a reasonable price. Vargas would have had to
kindly ask Bissett and Treanor to sell him an easement. Given how fiercely
the couple opposed the razing of their trees, Bissett and Treanor might well
have refused and Vargas would have been unable to protect his solar panels
from shading.
Would denying Vargas solar access protection have produced the efficient
outcome in the case? The answer to that question depends on the relative
values of the two competing uses of the airspace at issue. If protecting
Vargas' panels from shading was worth $10,000 and allowing trees to
grow in the airspace instead was worth $5,000, laws that resulted in no
solar access easement would be efficient. Proponents of strong solar access
laws tend to focus on this type of scenario, characterizing shading risk as
an obstacle to valuable solar energy development and advocating laws that
eliminate such risk.
On the other hand, suppose that allowing trees to grow in the airspace
was worth $20,000 rather than just $5,000. Under this revised set of facts,
aggressive laws like California's SSCA would have produced an inefficient
result by giving Vargas a property interest in his neighbors' airspace even
when Vargas' proposed use of it was not as valuable as theirs. As mentioned
earlier, the false presumption that solar access protection is always the
highest of all possible airspace uses underlies many aggressive solar access
laws that automatically reallocate airspace rights among neighbors to
prevent solar panel shading.
Incorporating a compensation requirement into a solar access statute
largely spares policymakers from having to presume that solar access is or
is not more valuable than other competing airspace uses. Instead, it compels