Energy Versus Property

This article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing (“fracking”), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The article then applies this insight to current disputes pitting aggressive renewable energy policies— such as nuisance immunity or mandatory installations on private property— against fundamental property expectations— the right to exclude and the right to use and enjoy. In doing so, it analyzes how the energy/property balance informs reasonable property expectations and helps resolve Fifth Amendment takings claims.

The central conclusions is this: throughout our legal history and into our energy future, when circumstances pit private property rights against the societal need for energy, i.e. when it comes to energy versus property, energy tends to win.