As fuel prices rise and environmental conditions deteriorate, the spotlight is back on renewable energy. But if solar power is to come into its own as a resource, says a UConn law professor, the issue of solar rights must be addressed.
Sara Bronin, associate professor at the UConn School of Law, says that while the government is encouraging individuals to invest in technology for the collection of solar power, there is no legal framework to protect those investments by recognizing solar rights.
In two recently published papers, ‘Solar Rights’ (Boston University Law Review, October 2009) and ‘Modern Lights’ (University of Colorado Law Review, December 2009), Bronin argues for the development of a legal framework that would ensure rights to access and harness the sun’s rays.
Developing a legal structure for solar rights could benefit both the individual and society at large, she argues.
“The rights to access and to harness the rays of the sun – solar rights – are extremely valuable,” writes Bronin in ‘Solar Rights.’ “These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences.”
The public benefits are also considerable. Noting that only 1 percent of the nation’s energy currently comes from the sun, she writes in ‘Modern Lights:’ “Solar collectors [which convert solar energy into heat or electricity] provide a clean source of energy with minimal impact on the environment. Expansion of their use would reduce the American dependency on fossil fuels.”
Solar energy was a popular topic in the late 1970s and early 1980s, when soaring energy prices coincided with the advent of new solar technology, says Bronin. But as the economy prospered, attention shifted. It was not until gas prices again rose rapidly a couple of years ago and the economy tanked that there was another window for talking about renewable energy.
Bronin hopes her papers will help re-engage scholars in the debate.
“Now is an especially good time to talk about solar energy,” she says, “because the technology and raw materials are becoming less costly. In addition, Americans can now take advantage of a federal tax credit for solar collectors and other state-level incentives for renewable energy.
“This unprecedented public investment in solar energy requires careful thought about a property rights regime that would encourage private actors to go solar,” she adds.
Although the federal government is investing in incentives for the use of renewable energy, Bronin says solar rights must be addressed at the state and local level, where property law operates, and land use and zoning regulations apply.
She says renewable energy should be at the top of every community’s priority list, noting that buildings account for two-thirds of the electricity used in this country.
Bronin says a solar rights system must take into account the characteristics of sunlight as a natural resource; variations in local conditions; and the rights not only of those who stand to benefit from solar access but also of those on whom restrictions would be imposed.
Sunlight travels in beams whose path varies depending on the time of day, and these beams often travel across property boundaries, she notes in ‘Modern Lights.’ This means that while a solar right benefits one property owner, it probably creates restrictions for others:
“A solar right, held by the owner of the destination parcel, would likely require that a neighbor or neighbors refrain from erecting any obstruction that would obstruct the path of sunlight to the destination parcel.” (‘Modern Lights’)
Because of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the right to the highest socially beneficial use, Bronin argues. However, she also recommends awarding compensation to those who are burdened by the right.
She suggests that rights to solar energy should be treated like rights to water, which are already well developed. “Water, like sunlight, is a natural resource,” she says. “Both flow and both cross property lines.”
Bronin proposes the development of local legal systems that integrate agreements between individual property owners with governmental procedures such as permitting and zoning.
Currently, most localities don’t consider solar energy in their zoning codes, she says: “States could step in and give guidance to localities.”
Her approach largely avoids the courts, which, she concludes in ‘Solar Rights,’ are “the least efficient and most costly method of obtaining a solar right.”
She also notes that opposition to solar power from regulatory agencies and from utility companies reluctant to lose their monopolies must be addressed.
Bronin says currently most renewable energy uses are either at the individual level (such as a solar power collector on the roof of a home), or on a large scale (such as the wind farms in Arizona and Texas.) “We don’t know how to do mid-level projects,” she says.
She is now writing a paper about local shared energy arrangements. A person with a solar power collector on his or her roof, for example, might sell some of the energy generated to neighbors, forming a “microgrid.” To date however, she notes, with the exception of a few demonstration projects, such arrangements are prohibited, or ill-considered, in every jurisdiction in the U.S.
“Microgrid technology is available and ready to be used,” she says. “The laws need to catch up.”
Architecture and the Law
Bronin, who joined the UConn law faculty in 2006, earned her law degree from Yale Law School. She also studied economic and social history as a Rhodes Scholar at Oxford University, and holds a degree in architecture from the University of Texas at Austin.
“After studying architecture, I realized the extent to which architecture is constrained by the law,” she says.
In addition to teaching courses at the Law School on historic preservation, land use, and property, Bronin has also served as the lead attorney and development strategist for the state’s largest green building project, 360 State Street in New Haven. She is a U.S. Green Building Council LEED (Leadership in Energy and Environmental Design)-accredited professional.
Renewable energy issues will be discussed on March 25, during a Law School conference titled, “How Can Connecticut Encourage Developers to Choose Renewable Energy?”
The environment is a growing focus of the Law School, and one of the areas of excellence identified in the school’s academic plan.