Modern Lights
Sara C. Bronin
This Article functions as a companion to a piece, Solar Rights, concurrently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights—the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.
Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.
Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.