Academic journal article Texas Law Review

A Proposed Solar Access Law for the State of Texas*

Academic journal article Texas Law Review

A Proposed Solar Access Law for the State of Texas*

Article excerpt

I. Introduction

Thirty-six states have passed laws recognizing homeowners' solar access rights and protecting the use of residential solar energy systems. Texas, however, a state with one of the highest solar power potentials in the country,1 has yet to enact a solar access protection law.2 Texas is the nation's leader in wind-powered energy-generation capacity, but the state's vast amount of direct solar radiation remains largely unexploited.3 Texas's enormous solar potential even led one study to rank Texas as the second most attractive U.S. state for long-term solar energy development, behind only California.4

But rather than focusing on what individual homeowners can do to harness this great solar energy potential, Texas has directed its efforts toward large-scale solar incentive projects. In recent years, for example, Texas has granted a tax deduction for business franchises that utilize solar energy devices,5 granted a tax exemption for business franchises that manufacture, sell, or install solar energy devices,6 granted a property tax exemption for the amount of an appraised property value that stems from the installation or construction of a solar energy device that is primarily for on-site use,7 and partnered with the U.S. Department of Energy and the Western Governors Association to install concentrating solar power systems.8 This large-scale focus is further evidenced by the nonexistence of a Texas law protecting the solar access rights of individual homeowners. While the state's actions thus far to encourage the use of solar energy and the growth of the renewable energy industry are essential components of the overall movement toward increased solar energy use, Texas-a state with "a virtually unlimited solar energy supply"9-has not done enough. Texas has pursued policies that promote the use of solar energy, yet it has failed to recognize and protect its citizens' solar access rights. As Texas law now stands, the possibility that their neighbors can build structures or plant trees that block the sunlight reaching a solar energy unit will make homeowners reluctant to invest in solar energy devices, as their rights to solar access are not guaranteed.10 Texas should therefore implement a law-such as the one detailed in this Note- that recognizes and protects Texans' solar access rights in order to encourage the installation and use of residential solar energy systems.11

Financial incentives certainly have an important place in promoting and increasing renewable energy use throughout the country as they work alongside solar access regulations toward the broader goal of increasing widespread solar energy use. While both devices act similarly to foster private preferences in line with the public interest, financial incentives are a mechanism for nurturing the broader industry as a whole, whereas solar access laws protect the homeowner as an individual.12 In the interest of brevity, however, I will not discuss the function of financial incentives in this Note. Instead, I will focus solely on the mechanism of solar access laws as they pertain to the use of residential solar energy devices.

In Part II, I examine why Texans should value solar access rights in light of climate change awareness, fossil fuel prices, and national security concerns. I also explain the science behind solar energy use, focusing particularly on small-scale solar energy systems, and detail the history of property law governing solar access rights.

In Part III, I propose a solar access law for Texas to enact. The proposed law aims to encourage homeowners across Texas to utilize solar energy systems on the small scale by (1) establishing the right to solar access as an individual property right; (2) defining the term solar energy system expansively to cover both passive and active solar energy devices; (3) eliminating both preexisting and future restrictions on property deeds that limit homeowners' solar access; (4) restricting neighboring property owners from obstructing existing solar energy systems; (5) curbing the power of homeowners' associations to place limits on property owners' solar access; and (6) requiring localities to protect homeowners' solar access rights when designing zoning ordinances and prohibiting localities from passing ordinances that would inhibit the operation of residential solar energy systems. …

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