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Wiseman on Regional Governance & the Energy Anticommons

By Lawrence Solum

Hannah J. Wiseman (University of Tulsa College of Law) has posted Expanding Regional Governance in an Energy Anticommons on SSRN. Here is the abstract:

Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a renewable parcel is identified, a new piece of property is superimposed upon existing boundaries and jurisdictional lines. The entities within these boundaries all possess rights to exclude, and this creates an anticommons tragedy, which hinders renewable development. This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address the anticommons challenge, and it analyzes elements of existing regional institutions to suggest the ideal structure of this agency. Once formed, the regional framework should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.

Full post as published by Legal Theory Blog on September 09, 2010 (boomark / email).