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Abstract: Property law has evolved and adapted throughout its existence in response to social and technological change. In this era of increasing focus on sustainable energy, new property rights disputes arising from innovations in the energy industry are once again stretching the bounds of property law. As novel energy strategies spread across the country, they are raising complex property questions involving wind currents, sunlight, deep underground mineral deposits, airspace, subsurface pore space, and other resources.
Resource governance regimes that reflect the unique characteristics of emerging energy technologies can play a valuable role in the nation’s continued pursuit of energy sustainability. Unfortunately, despite volumes of legal scholarship on the evolution and structuring of property rights regimes, there is little consensus among lawmakers or within the legal academy regarding how best to adapt such regimes to modern energy innovation. Courts and legislatures are increasingly feeling pressure to alter long-established property arrangements to accommodate and encourage new forms of energy development. At what point do these adjustments go too far, excessively compromising fairness and efficiency goals in an effort to promote a new energy strategy?
This short article, written for a joint program of the Natural Resources and Energy Law and Property Law Sections of the American Association of Law Schools at the Association’s 2013 Annual Meeting, offers some general guidelines for adjusting property rights regimes to accommodate new energy innovations. This article suggests that, when feasible, policy actions that merely clarify ambiguities in existing law are often the simplest and most cost-effective way to respond when important technological advancements place pressure on longstanding property structures. When such policies are inadequate or unavailable, the most equitable and efficient adjustments to property arrangements tend to be those that respect rather than disregard property owners’ existing entitlements.
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