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Mar 9, 2021
19 Min read time
A new “solar homesteading law” could harness rays of sun that fall on roofs and parking lots in cities and advance the aims of energy democracy.
The Biden Administration is currently considering alternatives to the large and mostly private electric grid. From Puerto Rico to California to Texas, that infrastructure increasingly fails, leaving people dangerously exposed to the worst impacts of the climate crisis. People die from heat, cold, and inoperable medical devices. But there is no shortage of energy, and there is no technological gap either. There is a mindset gap: our institutions treat electricity—which can come from any source—as if it were a fossil fuel. Consider the geography. Unlike oil, sunlight falls everywhere. One can mount solar panels on most roofs or parking lots, and even in open fields. We can harvest photons and convert them to electricity anywhere. But cities still import electricity as if it were Persian Gulf crude. The leading, large-scale plans for conversion to renewables may actually worsen this problem. More and more, New York, Chicago, and even sunny Los Angeles rely on rural solar and wind farms and long-range transmission lines. When this mega-grid goes down, the largely Black, brown, and low-income residents of those cities wind up energy poor and in the dark. Let’s improve the mega-grid, by all means. But we also need micro-grids. And we need a new way to politically demand solar resources—taking account of their geography and availability. When it comes the sun, let’s think outside the box.
What if we seized the sunlight falling unused on roofs, parking lots, and other urban surfaces? From it we could generate electricity, thereby advancing the vital transition away from fossil fuels. This proposal may sound radical to some. But, in fact, solar homesteading simply extends well-worn, U.S. traditions of rural, agricultural settlement.
Photons plunge from space onto warehouse roofs across the country every day. These photons, if captured, could contribute to photosynthesis and generate electricity.
After acquiring the Louisiana Purchase in 1803, the United States contemplated the best way to develop and distribute benefits over a vast expanse of land stretching from New Orleans to the Great Plains. Native Americans were to be shamelessly dispossessed, of course—but how exactly? The country’s answer to that question rested on balancing private property and public good, an effort crystallized in the first Homestead Act of 1862.
The Homestead Act offered a carrot while threatening a stick. In 1862 the federal government granted sections of “unappropriated public land”—namely, stolen Native American land—to “actual settlers” for free. With the Civil War underway, “settlers” excluded those who had “borne arms against the United States government.” (Note to Trump supporters: leave your clubs at home.) The term “settlers” was also meant to exclude large businesses: the Act limited lots to 160 acres, enough for a family tilling the semi-arid West but not enough for a land baron. That was the carrot. The stick came into play when farmers failed to farm and merely held land as a speculation for later sale. The Act imposed a five-year probationary period during which time any land unsettled or left abandoned for more than six months “shall revert to the government.” In other words, the stick was repossession. After all, why bother stealing an acre from indigenous people—presumed to be wasting it on mere hunting and gathering—unless you can put it to better, more productive, use? In theory this turned “ownerless” wilderness into a garden. The Homestead Act impelled U.S. settlers to “prove up”—to build houses, plant crops, raise livestock, and generally intensify production.
It was in this atmosphere of opportunity and threat that the most famous frontierswoman in U.S. literature, Laura Ingalls Wilder, grew up. Her father, Charles Ingalls, obtained a homestead in Minnesota but soon had to forfeit it due to non-use. Fortunately for him the Act gave him a second shot. “If Uncle Sam's willing to give us a farm…,” he explained to his wife and daughters, “I say let’s take it.” In 1880 they settled successfully in the Dakota Territory. In this instance the Act achieved its intended purpose—giving stolen land to settlers to develop. Subsequent legislation would have also given the Ingalls a right “of capture” to water and minerals, provided they used those resources productively. But the Ingalls used only the land, and their experience was not universal. Much Western land fell into the hands of speculators, before eventually passing into the hands of railroad and mining corporations.
In 1862 the Homestead Act balanced private property and public good. Today, it retains progressive potential.
Still, the Homestead Act retains a progressive potential today. The Complete Idiot’s Guide to Urban Homesteading suggests means of using the Act to legally acquire and cultivate vacant lots. As another example, the activist lawyer Dana May Christensen advocates a new Homestead Act for the benefit of communities of color in Detroit. Under hoe and trowel, she argues, the city’s many vacant lots could simultaneously reduce under-employment and under-nutrition. This right to garden represents the contemporary homesteading carrot and should figure in struggles for urban social justice across the United States.
But this carrot reflects only one aspect of the Act’s potential today. For solar homesteading, the stick is more relevant. The stick applies to owned resources that have been abandoned. The threat asserts that these resources, used unproductively, should “revert” to the government—described, in fact, as “public domain” in the Act’s title.
Most sunlight falls on cities without “capture.” For example, photons plunge from space onto warehouse roofs across the country every day. These photons, if captured, could contribute to photosynthesis, generate electricity, or, at the very least, illuminate a rooftop deck. But they are rarely captured and put to use.
Surely, when the owners of roofs and parking lots do not use sunlight effectively, they forfeit their rights to this resource.
A plain roof absorbs some photons inertly and bounces others off. The tar, shingles, or slate covering roofs effectively abandon sunlight altogether. Parking lots are even less receptive to sunshine: they divert photons from any positive function and, by accident, channel them instead into the negative urban heat island effect. Surely, when the owners of roofs and parking lots do not use sunlight effectively, they forfeit their rights to this resource—as Ingalls did his land rights in Minnesota.
Solar reserves should “revert to the government.” That 1862 turn of phrase could underwrite a newfound, solar public domain. As sunlight continues to fall unused, we should modernize and urbanize President Lincoln’s Homestead Act. While we’re at it, let us “solarize” it too. Solar homesteading can jump start the Green New Deal and bring energy democracy.
• • •
Today we might consider sunlight a planet-size Louisiana Purchase. However, in this case, sunlight is an infinite resource, rather than one enclosed by borders and water. Our star continuously sends 162,000 terawatts of energy into the Earth’s atmosphere, of which 39,000 terawatts bounce back into space. This means that a net resource of 123,000 terawatts is available—a rate roughly 10,000 times larger than all of the energy humans intentionally consume to generate electricity, heat buildings, fire furnaces, and transport everything. This photon frontier stretches wide, but, unlike the Louisiana Purchase in 1803, law recognizes much of it as already owned.
In private or as a commons, urban residents—especially Black and brown people excluded from energy claims and decisions—stand poised to appropriate the unappropriated solar resource.
The growers and gardeners in the rural and suburban areas of the United States claim solar rays every day on their privately-owned land, but cities and towns rarely put this resource to use. Everyday urban centers waste sunlight by the terawatt as it pours onto the barren dustbowl of parking lots and roofs, ignored. Meanwhile large populations—often of Black and brown people excluded from energy claims and decisions—live next to and below those surfaces. Urban residents could be the frontiersman of this metropolitan photon frontier. In private or as a commons, they stand poised to appropriate the unappropriated solar resource.
Perhaps sunlight has not yet been put to more use because it is hard to appreciate as a resource or as any thing at all. It does not lie still before the surveyor’s compass and the settler’s plough. It rushes past, barely apprehended as wave and particle by the tools of physics and astronomy. In the 1920s the term “photon” gave a minimal form to light, naming a concept Einstein had first described in 1905. Photon torpedoes and the walking, photonic robot followed, thanks to the creators of Star Trek and its sequels. “I am a mysterious thing, massless but powerful,” writes Kim Stanley Robinson, from the perspective of a photon, in his climate fiction novel The Ministry for the Future. Powerful indeed, as photons actually shake electrons loose in the silicon wafers of a photovoltaic (PV) panel. Despite all this photonic ambiguity, photons produce something we can measure, and very well: watts, kilowatts, megawatts, gigawatts, and, eventually, terawatts.
Of course, watts do not give sunlight mass, but they do correlate sunlight with surface area. On a clear July day in New Jersey, for example, 5 or 6 kilowatt-hours of photons will smash into each square meter of my rooftop panels. At about 20 percent efficiency, that square meter will generate around 1 kilowatt-hour per day. Promoters of solar energy refer to these kinds of figures as solar reserves, using the same lingo as the mining and petroleum industries. Solar reserves are measured in megawatt-hours—rather than tons or barrels like oil or coal—but they are reserves, of time rather than volume, all the same.
Scenarios for the energy transition—including the Green New Deal—have mostly overlooked malls, parking lots, and the urban United States altogether.
According to Brian Ross of the Great Plains Institute, most cities contain surface reserves of sunlight sufficient to cover anywhere from 25–70 percent of their annual electricity consumption. That wide range of annual gigawatt-hours signifies potential annual production. Think of it as the yield in refined iron or gasoline—or, more aptly, as a grain harvest. In the Great Plains, atop Minnesota corn country, sits 96 acres of roofs and parking lots—the Mall of America. That is one part in 145,000 of the acreage required to supply America’s annual electricity consumption. We have almost 145,000 malls in the United States, along with more than 19,000 cities, towns, and villages. These could be—to quote the inspired name of Minnesota’s Metropolitan Council’s solar dataset—“surface[s] with purpose.”
So far, however, scenarios for the energy transition have mostly overlooked malls, parking lots, and the urban United States altogether. Most proponents of the Green New Deal want to mount panels on the roofs of single-family, suburban homes or on the ground in the exurbs and beyond. Princeton University’s “Net Zero America”—the most detailed plan yet for siting solar and wind farms—excludes any area with a population density greater than 100 people per square kilometer and insists on a 500-meter panel-free buffer zone and a 1 kilometer turbine-free buffer zone. These area density measures and panel-free buffer zones are unwarranted—though fast-spinning blades do pose a physical risk, PV panels do not. Still, neighbors of solar farms have complained and protested. In upstate New York, writes Jim Shultz, “renewable energy rebels” are protesting the replacement of hay fields with ground-mounted panels.
There has not yet been an urban rebellion against rooftop solar, though. New Yorkers and Los Angelinos do not demand a buffer zone. On the contrary, urban homeowners and renters are clamoring for access to solar infrastructure. They know that sheets of silicon would lower electric bills and keep the electrons flowing. Moreover, in a crisis—such as the recent winter storm that disrupted coal, gas, and the electric grid in Texas—neighborhood solar energy could save lives.
Urban homeowners and renters are clamoring for access to solar infrastructure. Now, arrangements termed “community solar” allow groups of homeowners to pool resources and roof space.
This is what energy democracy could look like. Its precursor—a shift away from utilities—began more than twenty years ago, when the federal government and some states subsidized homeowners to put panels on their roofs. I installed twenty-two of them. This first wave of solarization mostly benefited wealthy Americans: those who owned detached houses with large, obstruction-free roofs. A lucky few cut their electricity bills to nearly zero and sold solar renewable energy credits back to the grid. Then, around ten years ago, residents of apartment buildings and other low- and moderate-income residents demanded a slice of the pie. Now, arrangements termed “community solar” allow groups of homeowners to pool resources and roof space. In some cases tenants can buy into solar arrays located elsewhere. To make matters even better, urban panels can operate as an islanded microgrid. This means that if the grid goes down—possibly because of a carbon-driven hurricane or fire—urban PV can power the energy essentials for millions of vulnerable people.
So what are the incentives for banishing all that life-saving silicon to the exurban fringe and beyond? Akin to how most decisions are determined, remote installation is more efficient and advantageous for the industry’s investors and bosses. Investors would rather lay 22,000 panels together on the ground than climb up 1,000 roofs scattered around different places. Every roof requires more trained employees—possibly unionized electrical workers demanding fair wages from installers, an emerging oligopoly composed of Sunrun, Sunnova, and a few other firms. For these firms the solar investment frontier begins exactly where the land frontier begins: 500 meters past the last warehouse, parking lot, labor union, and local community.
• • •
To put the idea of public control of urban sunlight into practice, solar rights would have to be severed from land rights, much as water rights operate now. Photons rain down from space, thus, one can harvest them virtually independent of the ground. Over a parking lot, for example, PV canopies intercept sunlight in the air before it hits the tarmac. Roof-mounted panels capture otherwise roof-bound photons. Those who own pavement and shingle, without putting solar resources to productive use, have neglected this opportunity—and for more than five years. They have forfeited their claim as the absent Charles Ingalls did in Minnesota. However, in this case, these land-users need not move elsewhere. They are wasting watts rather than acres. If they will not take advantage of the solar resource, representatives of the public domain should merely slip a panel between the surfaces that they own and the sky. This is a surprisingly simple maneuver. Lawyers and legislation make fine distinctions between soil, minerals, and water. These resources all have different purposes, and different parties may possess them within nominally the same rural acre. Likewise, in the city, one person may own a ground-level apartment; another, the apartment above; and a third, the land below both of them. Sunlight is the empty penthouse.
To put this idea into practice, solar rights would have to be severed from land rights, much as water rights operate now. But photons can already be captured independent of the ground.
If you’re not yet convinced, then let’s turn some degrees from the vertical. Most of us would object if a new skyscraper were to overshadow our neighborhood, as we feel that the inhabitant of an apartment is entitled to some sunlight—at least to rays that have long fallen at an angle or horizontally over adjoining, low-rise roofs. These are hard battles, of course, and the developer often wins. In New York, for example, supporters of the Brooklyn Botanical Garden are engaged in a “Fight for sunlight,” as glassed, light-hungry cacti may soon fall under the shadow of a tower planned for construction 150 lateral feet away. In the United Kingdom the succulents would probably prevail in court; the UK’s Law and Property Act of 1925 recognizes a right of “ancient lights,” a right present in common law as early as 1663. Ancient, here, does not mean very old: any window in position for twenty years or more—and any person or houseplant behind it—has the right to enjoy a guaranteed stream of photons. Woe to the homeowner who boards up a window, however. She loses her rights to rays. By the same token, high-rises are permitted to cast shade on plain, windowless walls. This is the rule of capture in practice: the first window laid before sunlight gets those photons. Now consider PV panels similarly, as windows lying flat or nearly so. At any angle the same rule should apply: use sunlight or lose it.
In homestead language, unused sunlight would “revert” to the public domain—but what would this look like in practice? For unused sunlight to be harnessed by the public, municipal workers would bring ladders to the buildings, climb up to the roofs, slap down panels on free spaces, and wire them to the grid. (Amazon, if you are reading this, you might want to install solar preemptively on all your warehouses now, for your own free electricity, while you still have the chance.) If the city wants to play nice, it will give roof-owners—say, Walmart or Donald Trump—a chance to install PV for their own benefit and save on electric bills. A publicly owned utility would be well-placed to make the threat and, when necessary, turn the “reverted” photons into electrons. Let’s stay in New York, where activists seek to create a utility called Public Power NYC. City residents would own and control their electricity democratically. Having disposed of the investors and profit-taking that hobble most utilities, the body could lower the price of electricity and guarantee its availability to low-income residents. Public Power NYC could also seize and repurpose photonic surfaces across the five boroughs. In any one of these arrangements, elected authorities would own the PV panels and other infrastructure, satisfying a central demand of energy democracy.
But there are other models, too. After reappropriating solar rights from photon-wasters, Uncle Sam and local governments could revive the carrot side of the Homestead Act. Public bodies might award rooftop leases to third parties. As applicants for those benefits, Sunrun and the like could expand their footprints. Implementing a 160-acre limit, however, would exclude such big players and create space for neighborhood-scale solar generators. Perhaps—as in another plank of energy democracy—community energy coops could buy panels and install them on roof-steads. The coop would save the cost of leasing surface area and pass those savings along to residents in the form of cheaper electricity while offering a reliable micro-grid when the main grid goes down. Especially in Black communities and communities of color, solar homesteading can provide what legal scholar Shalanda Baker calls “transformational justice within the energy system.”
The forms of solar homesteading then range from mere public duty to full public ownership. Either way, we come out alive and wielding some degree of civic authority over energy.
In the spirit of that “energy revolution,” the Homestead Act might also justify nonviolent civil disobedience. The law already has. At its carrot end, homesteading legalized a practice hardly different from squatting. The settler built his house and planted his crops in the public domain or on Indian land without paying a dime of rent to anyone. For an updated version of this, the Complete Idiot’s Guide to Urban Homesteading describes “guerilla gardening” as “growing on land that doesn’t belong to you, without getting permission from the property owner.” Some “guerrilla projects [are] overt,” enthuses the guide, “with prominent public spaces suddenly transformed into gardens.” Perhaps anyone can bury seeds in a road median for food democracy, which is not at all a bad idea. But electrical and solar squatting demands more technology and planning—as outlined by solarpunk science fiction. In “Midsummer Night’s Heist” by Commando Jugendstil and Tales from the EV Studio, activists wire Milan’s Piazza della Scala with photovoltaic “stelae.” Dawn powers them up and fills the square with recorded music.
To design long-haul, Wilder-style solar squatting, one has to speculate quite a bit more. Consider the polluted, energy-starved future of Paolo Bacigalupi’s climate fiction: fossil fuels are gone, electricity is scarce, and desperate scavengers trade the more tangible equivalents of calories or wind-up “kink-springs.” In this context an unguarded roof or parking lot presents opportunity. At 5:00 a.m. you climb up the walls or over the fence. You set up your portable solar panels and battery. You charge that battery with solar rays and, at sunset, rent it to a “swank” who needs refrigerator watts for the night. At dawn you collect the battery and start again. As lithium and silicon get cheaper—and if electricity gets more expensive—photon farming could dominate the hellscape of 2100. Or, in 2021, skillful, literally photogenic actions—with today’s gear—could launch energy democracy. (In actual fact, Texans could have used this technique during their horrific blackout, when the sun kept shining and electric rates skyrocketed to 75 times normal.) We have the choice to act now or later. If we don’t solar squat for utopia now, our grandchildren may be solar squatting under dystopia.
In 1862 and thereafter, homesteading made the prairie agriculturally productive for many people who otherwise had no access to land. That colonial vehicle overcame limitations of the market and private property. It served a greater good for white Americans—although not, when one considers Native Americans, the greater good. Today’s Green New Deal seeks to do the same thing, to redesign infrastructure and land-use for a greater good. Private property and market forces may assist, but only gradually. The rapid transition away from hydrocarbons and toward renewable energy requires central planning and administrative fiat. To many Americans, socialism of this sort is a deal-breaker. They would rather preserve our current political economy than the conditions for human and non-human life. That position sounds absurd. Nonetheless, a Right-Left battle—“capitalism vs. the climate,” as Naomi Klein subtitles a recent book—is already underway.
Many Americans would rather preserve our current political economy than the conditions for human and non-human life. But there are third options and unexpected combinations that might convince them otherwise.
But there are third options and unexpected combinations. With a little imagination, advocates of renewables can retool homesteading and other settler practices for a very different population—for urban renters of diverse backgrounds. Let me restate the enabling logic: 1) sunlight is a material resource; 2) owners of large surfaces without vegetation, PV panels, or, at least, deck chairs are wasting that resource; 3) in the interest of public good, government or any climate-minded group should seize such resources and use them to further the energy transition and save lives. These three principles can direct policies of varying strength. At the less forceful end, municipalities can encourage, cajole, and finally insist upon the installation of panels on all suitable, unshaded new buildings. In a more directive way, municipalities can invoke eminent domain to seize under-utilized roofs. Even the threat of eminent domain might provoke warehouses and big boxes to shape up. Amazon is installing panels slowly, here and there. With a little push from government, the firm shipping nearly everything in a day could also ship electrons at light speed from atop “fulfilment centers” on five continents. That would be a very capital-friendly means of avoiding climate apocalypse. At the other end of the scale, occupations and squatter movements can lead to cooperatively owned, affordable solar generation—and also help avoid climate apocalypse.
The forms of solar homesteading then range from mere public duty to full public ownership. Either way, we come out alive and wielding some degree of civic authority over energy. The climate emergency demands action. The Green New Deal could and should embrace this form of action. Sunlight is falling unclaimed somewhere right now. As Pa said to Laura Ingalls Wilder, “let’s take it.”
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