Economic and legal principles in renewable energy development policy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 12

something must be scarce to command a market price. Why, then, are
countless private individuals throughout the world today receiving large
sums of money under wind and solar leases and similar arrangements?
The not-so-obvious answer to this question is that developers who sign
wind and solar energy leases are not really paying for wind or sunlight.
The assets truly transferred under such agreements are carefully-defined
interests in land and in the airspace just above its surface—assets that
are inherently scarce. Installed wind turbines occupy surface land and
extend high into airspace, precluding any other physical occupation of
the space they inhabit and limiting the range of viable uses of land and
airspace in their immediate vicinity. Similarly, solar energy systems reside
upon rooftops and other surfaces and require that some of the airspace
near them be kept open to prevent shading. Renewable energy developers
secure property rights in surface land, rooftops, and airspace—not wind
and sunlight—to develop their projects. Thus, the emergence of renewable
energy technologies over the past few decades does not warrant legal recog-
nition of some new property type. Laws in most jurisdictions have clearly
allocated private and public property interests in the land and airspace
resources involved in wind and solar energy development for hundreds of
years.
Viewing renewable energy development conflicts as disputes over land and
airspace rather than as disputes over wind or sunlight can alter the analysis
of these disputes in ways that sometimes frustrate some renewable energy
advocates. Such frustration arises because this paradigm precludes policy-
makers from ignoring existing land and airspace rights in their eagerness to
promote renewable energy. Renewable energy development is merely one of
several potential ways of using any given set of land and airspace resources,
and in many cases it is not the most efficient or productive of all conceivable
uses. Commercial wind and solar energy projects can alter the character of
vast stretches of land and airspace, and materially change the appearance
and culture of communities. Even a fervent supporter of wind energy would
not advocate replacing Paris' iconic Eiffel Tower with a wind turbine. Nor
would it make sense for New York City officials to limit the heights of all
new downtown buildings to just three stories solely to protect sunlight
access and encourage rooftop solar panel installations. What policies, then,
should govern public and private decisions over which land and airspace
should be dedicated to renewable energy generation and which should be
reserved for other uses?
The best possible rules for addressing renewable energy land use conflicts
are those that, all else equal, are most likely to channel the scarce land and
airspace involved in such conflicts to their highest valued uses. The balance
of this chapter discusses land and airspace rights in the context of renewable
energy development in greater detail, elaborating in particular on the
growing role of airspace in the sustainability movement and the potential
implications of this trend.