Ann Eisenberg (West Virginia University College of Law; University of South Carolina – Joseph F. Rice School of Law) has posted Clean Energy and Enclosure on SSRN. Here is the abstract:
Rural land has become a sought-after commodity. Whether used as a financial asset, a megafarm, a target for a new data center, or a site for a utility-scale energy project, land in the countryside is being put to new uses in ways that look like an unprecedented era of consolidation, commodification, and industrialization. This Article argues that the phenomenon of enclosure—referring to the large-scale closing off of property—can help shed light on this transformation of rural land, characterizing these trends as not merely a set of new land uses but as a structural change to rural property relations.
The story of enclosure is often told as a straightforward tale of shared amenities becoming privatized. This Article first articulates a definition of enclosure as a process of geographically imbued class struggle and restructured property relations, extending beyond ordinary land use politics. As an illustrative example, the Article then compares the definition of enclosure to the past twenty years of utility-scale renewable energy deployment in rural regions and suggests that this aspect of the energy transition has flavors of enclosure. Large energy projects can occupy tens of thousands of acres. Laws are being changed to facilitate this occupation of rural space, where the population also tends to be poorer. Deployment most directly benefits private developers and the shrinking population of elites who own rural land, yet projects are pursued in the name of the greater good due to climate change. While locals’ resistance to projects tends to be framed as a sign of rural backwardness, these, and other industrial land uses, reflect a meaningful loss of one of the last free, shared things in American property: rural spatial openness.
The enclosure characterization helps explain rural resistance to industrialization as a predictable response to structural change in property relations. Deploying renewable energy through enclosure-like processes is particularly ironic because enclosure is arguably the root cause of climate change, given the phenomenon’s foundational role in facilitating natural resource commodification, capitalist crisis, and fossil fuel production. This characterization suggests that alternative property arrangements, including alternative modes of clean energy deployment, are more sustainable in a holistic sense. Legal frameworks for energy deployment and other land uses that respect informal norms of land relations, prioritize local benefits and decision-making processes, and prevent further economic stratification will encounter less resistance and better facilitate the socially beneficial development of land.
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