Alexandra B. Klass

Property Rights on the New Frontier: Climate Change, Natural Resource Development, and Renewable Energy

This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control law, but the role in each field is quite different. Early natural resources law was based significantly on conveying property rights in natural resources to private parties to encourage westward expansion and economic development. By contrast, pollution control law as it developed in the 1970s and 1980s was based on placing limits on such rights and creating government permit systems to meet environmental protection goals. This Article proposes that as scholars and policymakers consider approaches to developing wind and solar energy, it will be important to not rely too heavily on a property rights-based, natural resource development approach. Instead, this Article argues that an approach that integrates resource access into state and local permitting and land use planning frameworks may better meet development and environmental protection goals without creating new entrenched and potentially problematic property rights in natural resources. Moreover, because wind development and solar development present different concerns with regard to size, scale, and environmental impact, this Article suggests that solar development should be structured based on private solar easement transactions within a hospitable local zoning framework while wind development should be based on a state-wide siting and permitting structure with much more limited local government involvement.

Carbon Capture and Sequestration: Identifying and Managing Risks

While risk is a fact of life, managing risk is complex. This is particularly true today in considering how to address climate change. We know that we must act, and act quickly, to significantly reduce greenhouse gas emissions in order to avoid dangerous climate change. Failure to act risks catastrophic climate impacts. We also know, however, that deploying technologies to significantly cut greenhouse gases will fundamentally change the way society produces and uses energy. Carbon capture and geologic sequestration (CCS) technology promises to provide deep emissions cuts, particularly from coal power generation, but deploying CCS creates risks of its own. This article first considers the risks associated with CCS, which involves capturing CO2 emissions from industrial sources and power plants, transporting the CO2 by pipeline, and injecting it underground for permanent sequestration. This article then suggests ways in which these risks can be minimized and managed and considers more broadly when or if CCS should be deployed or whether its use should be limited or rejected in favor of other solutions.

Bees, trees, preemption, and nuisance: A new path to resolving pesticide land use disputes

Every year, nearly 5 billion tons of pesticides are intentionally applied to the American landscape. Pesticides have eradicated deadly diseases worldwide and allowed the United States to become an agricultural giant, but have also created a significant risk to human health and the environment. The high stakes at issue have caused the federal government to create a comprehensive system of pesticide regulation, which has been subject to a significant amount of litigation. The bulk of this litigation has tended to fall into two distinct categories. The first category of cases (the FIFRA Preemption cases) consists of claims by pesticide users against pesticide manufacturers for personal injury or damaged crops where the key issue often involves whether such claims are preempted by FIFRA - the federal pesticide law. The second category of cases (the Pesticide Land Use cases) generally involves claims by non-pesticide users against pesticide users (usually neighboring landowners or aerial pesticide applicators), for property damage, crop damage and/or personal injury. Although the Pesticide Land Use cases seek damages similar to the FIFRA Preemption cases, the Pesticide Land Use cases rarely discuss FIFRA and focus heavily on common law negligence claims with far less emphasis on related claims of trespass, nuisance and strict liability. Not surprisingly, unlike the FIFRA Preemption cases which often look to unifying principles of federal pesticide law to reach a result, the Pesticide Land Use cases vary significantly in terms of the theories used and results reached even though they involve the same types of FIFRA-regulated pesticides. As a result, there is significant unpredictability in these cases, making it difficult for lawyers to properly advise their clients on the merits and select appropriate experts, and difficult for courts to choose a framework for resolution, resulting in inconsistent results both within and between jurisdictions. This Article explores ways in which the Pesticide Land Use cases can benefit from some of the uniformity principles that permeate the FIFRA Preemption cases in the context of negligence claims. More important, this Article proposes that common law negligence is a far less useful mechanism to resolve these cases than are other common law claims such as trespass and nuisance, as well as underutilized state and federal statutory claims.

Remaking Energy: The Critical Role of Energy Consumption Data

This Article explores the public policy benefits associated with increased access to energy consumption data as well as the legal and institutional barriers that currently prevent such access. As state and local governments as well as electricity users attempt to improve the efficiency of their buildings, reduce greenhouse gas emissions, and realize the promises of improved demand side management of energy resources, the need for electricity and other energy-related data becomes even more pressing. But the current law that balances making energy consumption data available against any privacy or confidentiality interests in the data is underdeveloped. Thus, this Article draws on more sophisticated legal frameworks governing health care, education, and environmental emissions data that balances the public policy needs for data evaluation with countervailing interests. A review of the law in these fields shows that the privacy and confidentiality interests in energy consumption data may be overstated and, in any event, can be adequately addressed in most instances through aggregating the data, using historic rather than current data, or through contracts and other agreements to ensure security where access to individualize data is needed.