Defining Power Property Expectations

Date01 June 2015
Def‌ining Power Property
by Michael Pappas
Michael Pappas is an Assistant Professor of Law at the University of Maryland Francis King Carey School of Law.
I. Introduction
To date, most government eorts to promote distributed
solar energy have involved incentivizing property owners to
undertake voluntary instal lations. However, that approach
is changing, as government actors move to increase distrib-
uted solar generation capacity not only through incentive
programs, but also through requirements. Such a change
from voluntary to mandatory measures represents a seismic
shift in the approach to encouraging distributed solar gen-
eration, and it may raise objections about interference with
property expectations.
e Com ment add resses those concerns by exploring
the nature of propert y expe ctat ions in the energy con-
text a nd analyz ing how c ourt s and legislatures have ba l-
anced propert y expec tations against pa st govern ment
measu res to encourage energy production and devel-
opment of underexploited resou rces. e Comment
conclude s that throughout the h istor y of ene rgy devel-
opment in the United States, propert y owne rs’ expec-
tation s h ave been understoo d to accommodate socially
benecial ene rgy pr oduction, and t hat the concer ns sur-
roundi ng t he promotion of di stributed s olar generation
couns el a s imil ar approach.
II. Promoting Distributed Solar
Distributed solar generation, such as solar installations on
residential or commercial rooftops, represents an energy
resource with great potential. Using largely unharnessed
areas of already developed properties for on-site energy
generation presents overlapping benets, such as increased
clean energy production without additional energy sprawl
or transmission concerns.1 Moreover, if ma ny distributed
solar energy sources are aggregated, that can lead to a sub-
stantial cumulative societal benet.
Aggregating distributed solar sources, however, is
an inherent challen ge to m axi mizin g their benet. To
reach the full potential of this energy source, both in
terms of production capacity and in ter ms of network
or microgrid eciencies, 2 re quires mass part icipation.
Quite simply, the more distr ibuted generators there are,
the great er the impac t of distributed gener ation. But
because distributed power sources are, almost by de-
nition, located across mu ltiple properties with mu ltiple
owners, the installation of mass- distr ibuted generation
capacit y require s the coord inated activit y of multiple
private a ctors, w hich c an be dicu lt.
As a relatively new energy technology, distributed solar
installation has had some success, but it still faces the chal-
lenges that many new technologies face in achieving broad
acceptance. Some property owners are uncertain about
adopting the technology, due to concerns over reliability,
uncertainty about benets relative to costs, or even cog-
nitive barriers t hat prevent rational investment.3 Further,
the lack of adoption may be self-perpetuating, with some
property owners waiting for w idespread acceptance before
investing themselves, while others await the price drop that
will likely accompany increased production of solar panels.
Finally, others may simply not wish to invest at all, per-
haps because they believe that rooftop solar installations
are not ae sthetically pleasing or because they are unlikely
to directly reali ze the benets.4 Whatever the cause, wide-
spread adoption of distributed solar generation has not yet
been realized, a nd the full potential of the resource has
been hampered by the a ssembly problems frequently asso-
1. See generally Michael Pappas, Energy Versus Property, 41 F. S. U. L. R.
435, 439-41 (discussing benets of distributed generation) [hereinafter Pap-
pas, Energy].
2. See, e.g., Sara C. Bronin, Curbing Energy Sprawl With Microgrids, 43 C.
L. R. 547, 559 (2010) (discussing microgrids and their benets).
3. See Pappas, Energy, supra note 1, at 441-43.
4. See, e.g., id. at 442 (“Landlords often have no incentive to invest in energy
eciency or renewable energy because the tenant pays the utility bill.”).
Author’s Note: is Comment is based on remarks at the Association
of American Law Schools’ Natural Resources and Energy Section
2015 annual conference.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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