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 INTRODUCTION
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. These changes make modern energy somewhat "urban," loosely defined here as energy infrastructure that appears near residences, schools, and other non-industrial buildings. This is not to say that energy generating units or gas wells are now consistently packed within cities, and more so than in the past; rather, I observe that a non-negligible amount of modern energy infrastructure, whether temporary or permanent, is close to people, whether in cities, towns, townships, boroughs, or rural agricultural areas. (6)
In the past decade or so, energy companies have begun to unlock vast quantities of oil and gas from unconventional formations, including shales and tight sandstones thousands of feet below the earth. (7) By definition, unconventional fuel resources do not naturally flow toward common points underground without enhanced fuel recovery techniques (techniques required in addition to drilling). (8) This means that energy companies must drill thousands of wells throughout an unconventional formation; (9) where human populations happen to be located on top of the formation, these wells will inevitably bump up against other surface uses. (10) In the City of Fort Worth, which lies over a productive area of the Barnett Shale in Texas, there are approximately 1832 producing gas wells, with 123 additional permitted wells. (11) Arlington, Texas also hosts many wells. (12) And well numbers in Texas and elsewhere will likely continue to expand: from North Dakota to Colorado and Pennsylvania, companies are drilling and hydraulically fracturing thousands of new wells. (13) As a result, the United States is on track to be one of the world's largest oil producers and a major exporter of natural gas, something few would have predicted only a few years earlier. (14) Activities associated with this boom might also be increasingly irksome to certain residents: mining sand for the "proppant" used to prop open fractures in shales after hydraulic fracturing can create dust, noise, and other nuisances in addition to substantial environmental effects. (15)
Unconventional oil and gas production is not the only change that has pushed modern energy development closer to human populations in some regions. As energy companies increasingly tap renewable energy resources like sunlight and wind, they must similarly take advantage of low-density, widely distributed resources. Just as unconventional fuels are characterized by their widespread, low-flow nature and require thousands of wells to be developed, renewable fuels are "flow-limited" and must be captured by numerous solar panels or wind turbines. (16) And like unconventional fuels, renewable resources exist in economical quantities only in certain regions (17)--some of which host large human populations.
In a growing trend away from centralized production of renewable resources from large utility-scale plants--which require transmission lines for long-distance electricity transport (18)--residents and business owners in a number of states are building distributed renewables like solar panels on roofs and wind turbines in backyards. Governor Jerry Brown of California wants 12,000 megawatts of electricity to come from "localized" renewable sources--"small energy systems located close to where energy is consumed"--by 2020. (19) Indeed, San Diego already has 4500 solar projects, producing "more solar power than the entire nation of Mexico." (20)
The trend toward localized (distributed) renewable energy, like the drilling of thousands of new oil and gas wells, places some energy infrastructure directly within cities, or close to certain residential areas, and can cause conflicts. (21) Distributed electricity production will likely continue to expand along with the growth of the Smart Grid, which is a general term used to describe the computerization of both electricity transmission and distribution wires (22) and certain appliances attached to the grid. (23) The Smart Grid allows consumers to better control both their electricity use and their sale of electricity back to the grid, including from batteries, (24) fuel cells, and renewable infrastructure. (25) With an advanced grid and improved renewable and electric vehicle technology, each home and business could become a small generating plant, thus shifting some electricity production functions toward population centers. (26) Indeed, certain buildings within cities--often schools, nursing homes, and hospitals--already produce their own electricity and/or heat through combined heat and power projects. (27)
The cycling of certain energy resources back to the local level and the move toward unconventional fossil fuels and renewable energy raises a variety of legal issues. Individuals, citizens' groups, and governments have sometimes objected to energy infrastructure development that conflicts with other land uses: neither wind turbines nor gas rigs running around the clock mix well with residential development, (28) and even seemingly innocuous solar panels can cause disputes. (29) A number of individuals have argued that energy development creates backyard nuisances, from alleged contamination of water and soil as a result of drilling and hydraulic fracturing (involving both nuisance and negligence-based claims) (30) to aesthetic disruptions caused by solar panels. (31)
In some cases, the co-location of energy infrastructure and humans has also had direct physical impacts on the infrastructure on which many people rely, including roads, and wires that deliver electricity. In certain cities, utilities' old grids, which are designed primarily to deliver electricity to customers, cannot easily accept more electricity flowing back to the grid from rooftop solar panels (32)--particularly when many residents within one area all attempt to produce their own home-grown electricity. Other communities have experienced road damage and traffic conflicts (33) as thousands of trucks carry materials to and from oil and gas drilling and fracturing sites.
And finally, at a broader level...