Urban Energy

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