By Hannah Wiseman
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a potential site for a utility-scale development is identified, a new piece of property, which I call a “renewable parcel,” is superimposed upon existing boundaries and jurisdictional lines. The entities within the parcel all possess rights to exclude, and this creates a tragedy with anticommons and regulatory commons elements, which hinder renewable development.
In a renewable parcel, numerous rights of exclusion in the form of fee simple ownership, leasing rights, use rights, and regulation make use of a renewable parcel difficult and create anticommons-type problems. The multiple jurisdictions that may underlie the parcel also lead to a regulatory commons, wherein no one government is sufficiently incentivized to create a workable governance regime.
This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address these barriers to renewable development, and it analyzes elements of existing regional institutions to begin to suggest the ideal structure of this agency. Once formed, the regional framework
should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
Cite as: Hannah Wiseman, Expanding Regional Renewable Governance, 35 Harv. Envtl. L. Rev. 477 (2011).