Economic and legal principles in renewable energy development policy - Solar, Wind and Land: Conflicts in Renewable Energy Development - page 14

land: ownership rights in a cube of remote, high-altitude airspace might
be worth only pennies, even though rights in an equivalent volume of
airspace above a city's downtown core might fetch millions of dollars.
Airspace is distinct from “air”—the life-sustaining blend of mostly
nitrogen and oxygen gases that circulates around the planet. Because
air pollutants freely course throughout the world's air supply, air is
sometimes characterized as a globally-shared “commons.” In contrast,
much of the space through which air flows is not a commons but is
separately owned or controlled.
Similarly, airspace is distinct from the countless invisible waves that
pass through air. Vibrating objects transmit electromagnetic waves of
varying frequencies through the air to deliver music, spoken words,
and other sounds to our ears. Modern electronic equipment can also
transmit waves of varying frequencies through air, including waves
capable of communicating information via devices such as cellular
phones, radios, and wireless computer receivers. The radio spectrum
itself is a highly regulated commons in the United States, subject to
detailed policies from the Federal Communications Commission for
allocating transmission rights at various frequencies among private and
public parties. However, all of these waves and transmission frequencies
are distinct from the airspace through which they commonly pass.
On a similar theory, airspace is also fully distinguishable from the wind
currents and solar rays that fuel renewable energy generation. Airspace
can be largely devoid of wind and sunlight on calm evenings and yet
serve as the medium through which those resources travel on blustery
days. Because wind and solar radiation are practically inexhaustible, they
arguably warrant no private property protection under conventional
property theory. In contrast, airspace is a finite, immovable resource
that has justifiably enjoyed property protection for centuries … Airspace
laws originally evolved much as classical property theorists might have
predicted: through the emergence of property rights in what was a previ-
ously shared commons in response to technological innovation.
For much of recorded history, most of the earth's airspace was
beyond the physical reach of humankind so few conflicts could arise
regarding its use. Out of practical necessity, the majority of the planet's
airspace was merely a commons through which landowners enjoyed
sunlight and views. Laws in ancient Rome recognized that surface
owners held rights in the airspace above their land. The “doctrine of
ancient lights” at English common law also indirectly limited some
building heights in order to protect neighbors' access to sunlight.
However, in early, agriculturally-based societies, most landowners were
primarily concerned with having rights in enough airspace to enable
their crops to grow.
As construction techniques gradually improved over the centuries,
airspace became an increasingly valuable resource and rules clarifying