Wiseman, Hannah J., Fordham Urban Law Journal
Growing domestic energy development--the extraction of fuels and construction of electricity generation facilities--poses new challenges to a country accustomed to importing much of its energy. As has always been the case, fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed.
As we tap these sources in ever more numerous locations, energy development bumps up against certain human population centers. The City of Fort Worth, Texas, now hosts nearly 2000 hydraulically fractured natural gas wells, and San Diego has more than 4500 solar projects. With the rise of the Smart Grid, every American consumer could become a small source of electricity, sending electricity back into the grid from a plug-in hybrid electric vehicle, a solar panel or small wind turbine, a fuel cell, or battery storage. As energy development becomes an integral part of certain population centers, the law will have to adjust, responding to property-based, land use and environmental disputes; nuisance claims; enhanced demands on local infrastructure; and equity concerns related to unevenly distributed effects.
This Essay explores these growing themes in energy law, investigating how certain populated areas have begun to embrace their role as energy centers by addressing potential conflicts ex ante--in some cases creating clearer zoning and permitting systems, and using a combination of public and common law to balance the tradeoff between land-based energy demands and other needs. The Essay also briefly proposes broader lessons for improving energy law based on the piecemeal approaches so far. Municipalities must address energy development in their comprehensive plans and zoning ordinances, and states must provide certain uniform standards for energy development but not preempt all local control or common law actions. Finally, all levels of government must carefully examine the unevenly distributed impacts of energy and ensure that those who bear the brunt of energy-related development have a meaningful say in the bargaining process that balances producers' and others' costs and benefits of energy development.
TABLE OF CONTENTS Introduction I. Property, Land-Use, and Environmental Conflicts A. Property Rights Conflicts B. Incompatible or Conflicting Uses: Zoning and Nuisance C. Environmental Impacts II. Physical Constraints on Urban Energy Development III. Equity Concerns Conclusion
The extraction of fuel resources and generation of electricity in the United States have gone through several cycles. The use of primary energy resources to produce heat or run a steam engine was originally quite local: individuals burned coal or wood to heat their homes and used candles and later oil and gas lamps for light. (1) When electricity began to replace gas lamps, thousands of small, local power plants supplied this secondary energy source--with more than forty plants in Chicago alone in the early twenty-first century. (2) With the invention of alternating current, however, which allowed electricity to be more efficiently transported over long distances, (3) electricity became a highly centralized endeavor, with large power plants generating electricity and transporting it hundreds or even thousands of miles for eventual delivery to customers. (4) Conventional fuel extraction, too, occurred in productive, discrete, conventional reservoirs, (5) and a growing network of interstate pipelines allowed long-distance transport of fossil fuels from large oil and gas fields.
The twenty-first century has seen several important changes in fuel extraction, electricity generation, and energy transportation, bringing some of these activities closer to human populations. …