Clean Energy and Enclosure

Open PDF in Browser: Ann M. Eisenberg,* Clean Energy and Enclosure

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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.

Introduction

Rural land faces a variety of novel pressures today.^[1] Investors increasingly want to hold rural land as an asset, while developers throughout the country are seeking undeveloped parcels where utility‑scale energy projects and data centers can be installed.^[2] Increasing concentrations of rural landownership influence these trends, as corporate or absentee owners continue to move away from more traditional land uses, such as small‑scale farming.^[3] Rural populations, meanwhile, are not always so keen on the growing land use pressures being placed on their communities. Proposals for large industrial projects that tend to benefit those outside the local community are encountering resistance and agitation throughout rural America.^[4] Altogether, it appears that the countryside has entered a new era of industrialization and contestation.

Historical precedents and generalizable phenomena can help make sense of modern trends that seem novel.^[5] This Article argues that one such category of precedent or occurrence helps shed light on the tensions surrounding these seemingly new land use pressures. That precedent is the property‑related phenomenon known as “enclosure,” which is typically understood as a process of restricting communal access to property on a large scale.^[6] The Article argues that these novel land use transformations share many traits with enclosure movements.

Establishing that a phenomenon can be understood as “enclosure” matters for at least two reasons. First, it elevates a trend beyond instances of everyday land use politics.^[7] Enclosure reflects a structural change in property relations, as opposed to a series of discrete conflicts.^[8] The characterization suggests that a given phenomenon adds up to more than the sum of its parts. Recasting the problem in terms of enclosure, in turn, has implications for the very essence of how a society has organized its property relations, including profound value judgments as to who benefits from land and why. New, large‑scale enclosures change the answer to the question, “What is property?”^[9] Enclosure is often a precursor to further land commodification, consolidation, and capital accumulation, suggesting that the phenomenon contributes to property’s continuing transformation into a “plaything[] for the very rich.”^[10] This line of inquiry can therefore add more to a shared understanding of rural land use conflicts than an analysis through the lens of zoning fights, environmental justice, or energy democracy.^[11]

Second, processes of enclosure have stakes and power dynamics baked into them that differ from accounts of everyday land use conflicts or environmental injustice.^[12] In addition to an avenue of structural change, enclosure can be understood as a form of class conflict with spatial dimensions that transcends the “environmental.”^[13] As the discussion will show, enclosure movements have long histories of displacing land‑based laborers into wage labor, making workers’ conditions more precarious, contributing to regional depopulation, and exacerbating socioeconomic stratification.^[14] The past half‑century in the rural United States has already exhibited these patterns.^[15] In addition to its implications for property norms, a phenomenon with these characteristics has clear potential for diagnosing and addressing the broader societal problem of rural marginalization and alienation.

American property law scholarship tends to focus on English enclosure, in which English elites hedged off common fields used by peasants for subsistence activities (also known as the “commons”) by constructing fences and formalizing systems of private property rights.^[16] This focus, in turn, often leads to a narrow, literal scholarly treatment of enclosure in which it is defined as a shared field becoming a privately owned field.^[17] Drawing on a broader view of the English experience, interdisciplinary literature, and law‑and‑political‑economy methodologies,^[18] this Article articulates a definition of enclosure that does more to capture the phenomenon as a structural rearrangement of land relations with aspects of class conflict. In broad terms, this definition characterizes enclosure as a form of land reform that involves a marginalized, regional population losing some kind of shared, communal access to or enjoyment of property.^[19] Other common factors include losses borne by those with informal norms of access in favor of those with formal property rights; state and wealthy or corporate actors facilitating the changes through law and benefiting from those changes the most; and a justification of the movement based on a contemporary definition of “common sense,” “progress,” or “the greater good.”^[20] In short, enclosure involves a ratcheting up of the right to exclude, to the detriment of those with less land, laying the groundwork for property to evolve into even more of an asset that benefits the wealthy and powerful.^[21]

As an illustrative case study, this Article focuses on the enclosure‑like aspects of utility‑scale renewable energy deployment in rural regions for the past two decades. The overwhelming majority of utility‑scale renewable energy generation projects—the type of projects that may be big enough that you might see them looking out an airplane window—are sited on rural land.^[22] These projects include wind and solar farms, as well as other infrastructure—such as transmission lines, transformers, and storage systems—needed to make those installations connected and effective within the electricity grid.^[23] The largest among these projects can spread across tens of thousands of acres.^[24] Existing and new projects are expected to take up as much as 6 percent of the land mass of the United States, or 12.7 million acres, much of which includes farmland.^[25] In turn, rural populations throughout the country have resisted these installations, often utilizing zoning and permitting processes or other legal challenges to either prevent or stymie the projects.^[26] In states where decarbonizing electricity generation is a goal, various state reforms have sought to neutralize rural resistance to hosting renewables generation, either through preempting local governments’ avenues for input, furnishing benefits for host communities, or pursuing a combination of both approaches.^[27]

In addition to its broader exploration of enclosure theory’s relevance to the rural, this Article argues that utility‑scale rural renewable energy deployment patterns have enclosure‑like aspects.^[28] Substantively, when large, industrial projects come to town, rural residents—to be distinguished from rural landowners, although there is overlap—risk losing their relationship to the state of spatial openness that has historically characterized rural land. Openness—meaning the relative absence of things and people—is the defining characteristic of rural land, according to virtually any definition.^[29] A state of relative openness creates regional character, facilitates certain forms of commerce and labor, shapes local lifestyles and identities, affects local property values, and offers potential for future development possibilities.^[30] A state of spatial openness is also free and can be enjoyed by landowners and nonlandowners alike. Large energy projects, like similar industrial land uses, impinge upon that  openness, occupying and closing off soil, grass, air, and viewscapes.^[31] They also take up space within people’s cultural consciousness and foreclose alternative development possibilities.^[32] A relationship to openness is, of course, not a formally recognized property right but an amenity shared informally by locals.^[33] Yet, if spatial openness did not mean anything, then it would not be of so much interest to investors and developers.

These large industrial projects result in a loss of shared spatial openness. But the erection of a structure is not enough to elevate a land use to an enclosure movement. The other aspects of the definition matter, and their flavors are also evident in utility‑scale deployment patterns. Laws are being changed to facilitate this land use at a large scale; where the laws have not been changed, private developers and privileged professionals are advocating for their change.^[34] These changes often benefit private developers and a landholding elite due to the energy system’s privatized nature.^[35] The changes are, at the same time, being pursued in the name of climate policy for the greater good.^[36] As a consequence of these combined changes, rural populations across the country are losing—being enclosed from—historical norms and practices of both passive enjoyment and active control that relate to the openness of land. These range from the aesthetic enjoyment of a view, proximity to or participation in agricultural activity, the overall pastoral or bucolic environment, or the potential land uses that openness promises.^[37]

It might seem unfair to single out renewable energy, which is an amenity typically understood as advancing important social welfare goals.^[38] The need for renewable energy is especially acute as of this writing, a time of severe obstructionism on climate change progress.^[39] This Article does not purport to share a litany of horror stories that portray wind and solar farms as uniquely or egregiously harmful.^[40] Importantly, the Article’s definition of enclosure is neutral as to the specific land use for which enclosure‑like processes may be pursued. Although outside this Article’s scope, the analysis is applicable to megafarms and data center proliferation, and it would be interesting for future analysis to apply it to urban contexts. The Article’s aim is also primarily descriptive and explanatory. It is not meant to be a lament of any change that happens in the countryside, or to treat rural populations as if they are innately different from people in other places.

Nevertheless, with clean energy in particular, the benefit of the doubt such projects may receive under the cloak of social welfare provides fodder to diminish or obfuscate enclosing‑like aspects of certain deployment patterns. While many are understandably concerned with achieving the outcome of clean energy deployment, the means of deployment matter as well as increases in capacity.^[41] Doubling down on achieving clean energy through enclosure‑like measures—through, for instance, preemption, permit reform, and aggressive enforcement of large landowners’ property rights^[42]—risks yet more rural political backlash, which itself is a force that stands in the way of climate progress.^[43]

The enclosure characterization sheds light on rural resistance to large energy projects and similar undertakings as a predictable reaction to a structural rearrangement of land relations, as opposed to instances of mere NIMBYism.^[44] While the loss articulated here might not immediately seem significant, an important premise for this analysis is that hundreds of years of enclosing patterns have left very few communal enjoyments of land remaining.^[45] Informal rural spatial openness is one of the last free, shared things left to lose in American property. While losing more of it is not a tragedy per se, this analysis does suggest that non‑enclosing alternatives should be taken seriously. In short, many are quick to argue that rural people are misguided when they oppose large energy projects because those projects have benefits and are not so bad to live near.^[46] However, this analysis suggests that there may be something wrong with the large energy projects anyway, along with the data centers and other forms of rural industrialization.

Non‑enclosing alternatives are both possible and preferable. Decision‑making processes that both recognize locals’ stakes in the land that surrounds them and provide avenues for input serve important functions. Such processes validate local land relations and help those relations endure in the face of new forms of industrialization.^[47] Robust local input will likely result in projects with more modest land use impacts, more diverse ownership structures, and more equitable distribution of project burdens and benefits.^[48] These approaches will help maintain spatial openness if locals desire, reduce tensions associated with class conflict, and generally create an approach to deployment that is more respectful and inclusive, treating even privately owned property as interconnected in many ways: the opposite of enclosure.^[49] A precursor for states and other governing institutions to facilitate these modes of energy deployment is a recognition that it is not rural localities’ obligation to furnish energy for other places and populations, which is in tension with how the country currently distributes burdens and resources across geographies.^[50]

Two counterarguments to this analysis are most apparent. The first is that the characteristics of the movement for utility‑scale renewable energy are not serious or widespread enough to be compared to enclosure, or they do not infringe on anyone’s actual property rights. Living next to a solar or wind farm is not nearly as egregious as the centuries of dispossession of English peasants.^[51] Importantly, though, enclosure movements can be varied and adaptable to time and place.^[52] They do not require uniformity or formality in the types of property enjoyments that are at stake, or in how extreme or violent they are or are not; they evolve and become more complex as technologies, property regimes, and cultures evolve.^[53] The question of who has authority to decide what an enclosure movement is—including which members of what academic disciplines—is itself a question of power and voice. Though this Article is the first to compare the U.S. movement for utility‑scale renewables in rural regions to an enclosure movement (to my knowledge), critical geographers and other social scientists have also consistently pointed out the enclosing nature of large renewable energy projects around the world.^[54] The stakes of these enclosure‑like trends are higher than they may appear because they reflect fundamental changes to property relations.^[55]

The second counterargument is that these projects actually are necessary for the greater good. Climate change is already here and already deadly, meaning drastic emissions mitigation measures are long overdue.^[56] Importantly, though, conceptions of “the greater good” are subjective and can be wielded in harmful ways. While scientific consensus about climate change is concrete, the implications of how and why climate change arose and how it should be addressed are just as political as any other question.^[57] Carbon and other greenhouse gas emissions from burning fossil fuels are, of course, the immediate cause of climate change.^[58] But one can frame the economic system of capitalism—the birth of which is often said to go hand in hand with both English enclosure and the advent of fossil fuel development—as the truer cause, along with its fundamental problems of overproduction, overconsumption, environmental destruction, and exploitation of distant populations around the world.^[59] A more holistic conception of the greater good and environmental sustainability suggest that non-enclosing alternatives to land relations are better poised to effectuate real change from an untenable status quo.^[60]

The Article proceeds in four parts. Part I revisits competing accounts of English enclosure and notes the relevance of the phenomenon to numerous trends in the rural United States over the past half‑century, suggesting that energy deployment is not the only context in which enclosure is a relevant theory. Part  I  synthesizes accounts of the English experience as a class struggle with interdisciplinary literature to articulate an original definition of an enclosure movement that can help shed light on modern legal and political‑economic conditions. This articulation attempts to push the enclosure concept beyond a rote story about the fencing off of public fields or a neoclassical economic definition of commons resources. Instead, Part I establishes enclosure as a class conflict with spatial dimensions, with law as one avenue to dictate the terms of the conflict.

Part II describes patterns in rural resistance to utility‑scale renewable energy projects, as well as those projects’ impacts on landscapes and communities compared with alternative models of deployment. Part II proposes that threats to rurality and rural identity—which relate directly to a state of rural spatial openness—are common themes animating opposition in the siting literature. Opposition is also fundamentally driven by the means of deployment used by the energy industry and its allies.

Part III compares ongoing patterns in utility‑scale rural renewable energy deployment in the United States to the articulated characteristics of an enclosure movement and argues that rural renewable energy deployment reflects traits of that definition. Salient factors include the widespread closing off of rural spatial openness, facilitated by and to the benefit of certain groups—including elite landowners, private developers, and state officials—and expedited by preemption and permit reform in the name of aggregate welfare. Altogether, these factors paint a picture of a trend that looks similar to an enclosure movement.

Part IV explores the central implications of the enclosure analysis. As a clarifying implication, enclosure movements have always encountered resistance, and this resistance should be rhetorically normalized rather than treated as odd or aberrant. Normatively, non-enclosing energy alternatives are both possible and preferable for the pursuit of grid decarbonization and can in turn inform non-enclosing structures for property relations more broadly.

Understanding Enclosure

Enclosure is often referenced by shorthand as a process of privatizing public fields or similar shared resources.^[61] However, both the processes and consequences of enclosure are more complex.^[62] Enclosure movements are capable of reshaping property relations, which in turn bear implications for commerce, class dynamics, culture, and the very character of a society.

This Part delves more deeply into the characteristics and significance of the concept of enclosure. Given the phenomenon’s importance in property law scholarship, Section I.A reviews the competing stories of English enclosure as either a story of progress or a story of tragedy and argues that the interpretations of enclosure as a force of social problems and injustice are more compelling. Section I.B reviews literature on enclosure as a general phenomenon, as well as the related concept of the commons. This Section posits that commons and enclosure research are relevant to a variety of trends in the rural United States. This relevance suggests that energy deployment is not the only land use trend for which enclosure theory is potentially illuminating, meaning the instant analysis does not foreclose the possibility of other enclosure‑like phenomena. Section I.C articulates an original definition of an enclosure movement that has potential to shed light on modern legal and political‑economic conditions, including rural renewable energy deployment.

The Competing Stories of English Enclosure

The phenomenon of English enclosure laid the foundation for much of modern Western property law.^[63] English enclosure may have started in the 1000s or 1400s, depending on the source, and it may have ended in the 1800s or the 1960s, again, depending on the source.^[64] In any case, this “great enclosure movement that took shape first in England and Western Europe . . . and then extended overseas to the New World” involved a major shift from a system of agrarian access in shared, “common” lands to a formalized, privatized system of property with mostly individual owners.^[65] Under the feudal system that preceded English enclosure, land was titled in the monarch, with various entitlements and managerial arrangements in place depending on any given person’s or population’s position in the feudal hierarchy.^[66] That hierarchy notwithstanding, landholding and landless peasants enjoyed relatively open access to land which allowed them to engage in subsistence farming and other activities.^[67]

Enclosure then “erased some or all of the preexisting rights in common lands in a specific village, laid out new roadways, and repartitioned the affected territory into private parcels that were larger and more compact than open‑field stripes, but smaller than the open fields themselves.”^[68] Manorial lords effectuated the first wave of enclosure, but in later centuries, Parliament passed legislation formalizing the new property system.^[69] The primary land use transitioned from subsistence activities to the larger‑scale cultivation of land.^[70] Even though the latter also involved food production, the transition was significant because it entailed more of a specialized, productive economic activity whose benefits accumulated for the landowner as opposed to the previous activities through which peasants could generally provide for their own needs.^[71] In other words, enclosure helped to treat land as a commodity rather than as a means for direct survival.

The implications of English enclosure, and enclosure movements in general, give rise to controversy.^[72] English enclosure has received mixed, polarizing reviews from historians, economists, and other scholars.^[73] According to the enthusiasts, English enclosure was a story of progress. The plotline of this narrative is that, prior to enclosure, disorganized agrarians made inefficient use of the resources available to them and ran a constant risk of “tragedy of the commons” scenarios. These scenarios involved self‑interested overuse of a shared resource to the point of depletion.^[74] Famines prior to or during enclosure revealed deep weaknesses in the food provision systems of medieval England.^[75]

The advent of enclosure then helped to save this inefficient and unproductive society from itself. Enclosure thus served as an “innovation in property systems” that “allowed an unparalleled expansion of productive possibilities” and avoided commons‑management concerns such as “overuse and underinvestment.”^[76] After English enclosure, “[t]he movement was hailed by the growing entrepreneurial class as one of the greatest advances in land development increasing the production of grain yields on the farms of some of England’s counties from ratios of 3:1 to 20:1.”^[77] Enclosure’s advocates came to view it “as a revolutionary scientific development, generally thought to be more efficient and cost‑productive.”^[78] Still today, enclosure is a proxy term representing the important advantages of private property over shared property.^[79] Private property brings order, efficiency, and abundance.^[80] The takeaway of enclosure for many is that “[p]rivate property saves lives.”^[81]

Historians have debated the evidence as to whether commons overuse was actually a widespread problem before English enclosure and whether enclosure did, in fact, usher in a new era of agricultural abundance.^[82] But according to critics who tell the competing story of English enclosure, whatever benefits it may have heralded were not worth the costs.^[83] English enclosure can also be understood as a story of severe social problems and injustice. After around the year 1500, “the process began to arouse intense feelings of popular outrage.”^[84] Fundamentally, even though feudalism was deeply hierarchical, enclosure brought with it yet a new era of class hierarchy. It created “two categories of individuals: those who had the power to enclose, and those who were dispossessed by acts of enclosure.”^[85]

As a result of that novel socioeconomic stratification, commoners lost their livelihoods, grew poorer, and experienced social dislocation.^[86] Regional depopulation, crime, and other social ails followed commoners’ displacement from their livelihoods and the land.^[87] Enclosure thus entailed, according to some, “a revolution of the rich against the poor.”^[88] Although peasants periodically revolted in response to enclosure or turned to other forms of protest, several centuries of enclosing efforts have meant that English enclosure has more or less won, despite many recognizing it as both “unjust” and “harmful in its consequences.”^[89] English enclosure not only laid the foundation for the next several centuries of Western private property regimes, but it also laid the foundation for the economic system of capitalism in which private owners control land and other means of production.^[90] This system means that laborers must depend on wages, rather than their own productive capacity, to survive.^[91]

Because of English enclosure’s foundational role in establishing systems of social and economic organization in the modern world, scholars and activists continue to explore its relevance to contemporary crises. For instance, historian Steven Stoll draws compelling connections among English enclosure, the evolution of modern capitalism, fossil fuel development, and persistent Appalachian poverty.^[92] Capitalism and enclosure are relevant to “the transformation of nineteenth‑century Appalachia,” he explains, “because while conditions there differed in all sorts of ways from seventeenth‑century England, capitalism arrived in the southern mountains with many of the same assumptions and replicated many of the same patterns.”^[93]

Much like in England, Appalachian peasants who did not participate in a commodified economy were displaced from land and subsistence activities with the rise of property privatization in pursuit of more efficient, larger‑scale natural resource cultivation.^[94] Patterns of concentrated landownership became juxtaposed alongside precarious wage labor and fossil fuel extraction, reflecting the systems of social organization modeled in English enclosure.^[95] Narratives of Appalachian backwardness helped facilitate and justify these processes.^[96] With industrialization and new energy technologies—at the time, often lauded as “progress”^[97]—the displacement of Appalachian populations engaged in subsistence lifestyles in favor of large, landholding fossil fuel operations closely mirrored the patterns of English enclosure. Thus, one can arguably draw a direct line from the modern crisis of climate change back to the foundation of English enclosure.^[98]

Enclosure’s apologists may characterize the critics’ framing as “sentimental bunk, romanticizing a form of life that was neither comfortable nor noble, and certainly not very egalitarian.”^[99] It is true that English society pre‑enclosure was still very challenging; a world without enclosure is not a utopia. But substantial evidence suggests that English life pre‑enclosure was nonetheless better for peasants. Characterizations of enclosures depend upon the values against which they are measured and competing visions for society.^[100] Yet, it is interesting that the debate over English enclosure largely comes down to a debate over efficiency, privatization, and productivity on the one hand versus equity, sharing, and ecological sustainability on the other—a debate that is very much alive and well in modern policy tensions.^[101]

The Relevance of Commons and Enclosure Research to Modern Rural America

English enclosure and subsequent developments have inspired a variety of forms of research across diverse disciplines. While the definition, process, and consequences of enclosure have received their own sustained attention, the concept of the “commons” has also been a focus of extensive research. The commons concept is often associated or analogized with those English fields that were allegedly overexploited and underinvested by the peasants before they were enclosed.^[102] Over the past several decades, the term has been extended to virtually infinite scenarios involving shared resource governance, as well as the question of whether certain resources should be shared or subject to private property regimes.^[103] For instance, a substantial body of legal scholarship recognizes increasing commodification of intellectual property as a “second enclosure” movement of a sort of intellectual commons.^[104]

A biologist with eugenicist sympathies, Garrett Hardin, helped popularize commons research with his 1968 essay, The Tragedy of the Commons.^[105] Since then, his theory about the inevitability of shared resource overuse has helped justify private property movements and the notion that “private desires and market forces should dictate how resources are employed.”^[106] In 1990, Elinor Ostrom ushered in a new era of commons research by debunking the Hardin thesis and earned a Nobel prize in economics in doing so.^[107] Her work built upon the “obviousness” of the fact that “for thousands of years people have self‑organized to manage common‑pool resources, and users often do devise long‑term, sustainable institutions for governing these resources.”^[108] In her foundational book, Governing the Commons, Ostrom provided empirical evidence of a variety of social systems that were successful or unsuccessful in governing their commons resources, including resources such as meadows, irrigation systems, and fisheries.^[109] Most importantly, she established that such forms of self‑governance were possible. In other words, her work casts further doubt on the tale of English enclosure, and subsequent enclosures, as inevitably successful triumphs over backward lifestyles.

Ostrom’s work and the subsequent literature—which see frequent engagement in contemporary property and environmental law scholarship—have a technical orientation, analyzing commons resources through the lens of neoclassical economics.^[110] That line of inquiry tends to define “common‑pool resources” as resources that are (1) difficult and costly to exclude people from, like an ocean, and (2) zero‑sum resources in that one person’s taking from them reduces the resources’ availability to other users, like fish in an ocean.^[111] These traits are sometimes summed up with the terms “nonexcludability” and “rivalry.”^[112] Ostrom’s and related scholars’ work establishes that while many examples exist of successful commons self‑governance at small scales—meaning that neither aggressive privatization regimes nor coercive permitting regimes are necessary—increasing complexity of resources and global interconnectedness make governance design all the more challenging.^[113]

My own prior work has argued that rural America itself, and the many essential amenities within it—such as farmland, renewable energy potential, natural resources, infrastructure, and the workers and communities that cultivate these resources—can be understood as a holistic commons of sorts that needs better stewardship and management as a shared resource vulnerable to hoarding and waste.^[114] I argued that it is helpful to conceive of rural America as a holistic entity that constitutes a commons because it is “a collective resource that we all need and use, and need to use in different ways than we currently do.”^[115] Rural regions are, after all, the site of 97 percent of the nation’s land according to the U.S. Census Bureau.^[116] The implication of the large‑scale rural commons theory points toward “finding a delicate balance between recognizing the urban majority’s entitlement to the rural commons on the one hand, while accounting for higher and more varied levels of rural embeddedness, entitlement, proximity, and cost‑bearing in commons governance.”^[117] As an example of what that might look like, my other work has explored the claim that rural populations bear greater burdens of public conservation initiatives and proposed that policymakers should take related concerns more seriously.^[118]

Perhaps more importantly, not treating rural America as a commons—a resource that requires careful stewardship with carefully tailored rights of access—has resulted in what I called “waste.” This waste stems from a lack of proper stewardship and decades of policies that treated “rural places and people as loci merely for extracting value until depletion”—depletion and degradation, ultimately, being the main concerns of commons discourse.^[119] One might be tempted to embrace the story that, especially before these sectors started to fade in the mid‑twentieth century,^[120] U.S. institutions failed to prevent overexploitation of the rural commons by the private sector, and even facilitated that exploitation through an embrace of the extractive rural economy. Through its unmitigated ravaging of the nation’s coal, oil, gas, timber, gold, uranium, wildlife, and other resources, the private sector did indeed effectuate a tragedy of sorts of the rural commons.^[121] Ironically, at least per Steven Stoll’s account, it was arguably the enclosure of those commons resources that facilitated their depletion rather than a failure in resource management.

My other prior work has criticized the effects of more recent moves toward privatization and deregulation in rural regions for the past half‑century.^[122] From the mid‑1900s through the 2010s, the prototypical rural experience in the United States has been characterized by regional depopulation and social dislocation, a loss of traditional, land‑based livelihoods, the proliferation of vacant, abandoned, and dilapidated buildings, higher rates of deaths of despair from drugs and suicide, and political despondency and radicalization.^[123] These more novel conditions came on top of the trends related to the previously described extractive tendencies, which left their own legacies of degradation.

If rural America can be conceived of as a commons, that means it is also a thing subject to enclosure, as Stoll’s account of Appalachia proposes. Some of the trends that have affected rural America on a broader scale might sound familiar as compared with the discussion of the effects of English enclosure in the previous Section. As one account describes English enclosure:

The fabric of society was being disrupted. Desolate villages and the ruins of human dwellings testified to the fierceness with which the revolution raged, endangering the defences of the country, wasting its towns, decimating its population, turning its overburdened soil into dust, harassing its people and turning them from decent husbandmen into a mob of beggars and thieves. . . . Some of these costs were brutally and relentlessly “material”—for example, the conversion of crofters and freeholders into debt‑peons, seasonal wage‑laborers, or simply . . . into beggars and thieves. But other harms are harder to classify: the loss of a form of life; the relentless power of market logic to migrate to new areas, disrupting traditional social relationships and perhaps even views of the self or the relationship of human beings to the environment.^[124]

The commonalities between the depictions of English enclosure and the trends that have affected rural regions for the past fifty years are striking: regional depopulation, property vacancy, cultural disruption, and displacement from land‑based livelihoods to more precarious wage labor.^[125] Thus, it seems worth contemplating whether the past half‑century of efforts to privatize the countryside through deregulation and other neoliberal policies—dismantling measures that did see some success in the early twentieth century of stewarding and protecting the rural commons despite the legacy of extractive ravaging—have indeed effectuated a new, large‑scale wave of enclosure.^[126] Viewing the issue through the lens of enclosure illustrates that the conditions associated with the so‑called urban‑rural divide may be neither as novel nor as inexplicable as they may seem but are an instance of history repeating itself.

Modern rural landownership patterns also speak to the relevance of enclosure to modern rural regions. Jessica Shoemaker has extensively documented the transformation of rural property, and farmland in particular, from a foundation for small‑scale, land‑based livelihoods—especially in systems arguably managed as successful commons resources by Indigenous inhabitants for thousands of years—into an apparatus of commodified, privatized wealth hoarding.^[127] As two illustrations of the pattern, she notes, “[a] single family in California owns over 2.4 million acres, the equivalent of more than three Rhode Islands. The top five largest landowners in the United States own more land than all Black Americans combined.”^[128] Shoemaker theorizes in particular the trend of law discounting the importance of connections between local residency and direct relationships with land in favor of treating land as an abstract commodity with little regard to its role in place-making and impacts on surrounding communities.^[129] Many of the financialization and commodification patterns Shoemaker identifies have in and of themselves been articulated as patterns of enclosure.^[130] Thus, even if a grand theory of a rural commons-and-subsequent-enclosure concept does not persuade, enclosing patterns are apparent in today’s systems of land tenure standing alone.

Toward a Contemporary Definition of Enclosure

When discussing commons governance and enclosure, legal scholars “have tended to hew very closely” to specific neoclassical “economic assumptions when analyzing resource dilemmas or problems through the lens of the commons.”^[131] Thus, much of the commons literature repeats the standard formula about nonexcludability and rivalry, then engages in institutional analysis about how to avoid so‑called tragedies of resource overuse.^[132] Enclosure, in turn, is often defined quite narrowly and literally based off of the English example: There was an open, publicly shared field, and the field was turned into private property.^[133] This definition might be articulated as “the transformation of commonable lands into exclusively owned plots and the concomitant extinction of long‑standing common rights to soil, firewood, timber, and, most importantly, pasture.”^[134]

Other disciplines understand enclosure to be less rigid or rare of a phenomenon and more fluid of a concept than these analyses tend to articulate.^[135] While English enclosure is often framed as a “rare, cataclysmic” one‑off event, enclosure can also be understood as a constant, rampant, widespread process of privatization and accumulation happening all around us.^[136] Ocean scholars recognize a mid‑twentieth century enclosure of ocean resources.^[137] Modern Indigenous movements in Indonesia have challenged both state and corporate activities as enclosure movements.^[138] In China, the United States, Nigeria, and beyond, progressive scholars and activists lament the ongoing accumulation of land by corporate interests that displace the working class from ways of life, jobs, homes, and regions.^[139]

The essence of enclosure is exclusion, or a ratcheting up of the landowner’s storied right to exclude. That increased exclusion then helps facilitate further commodification.^[140] This interpretation is consistent with English enclosure, as peasants’ relatively open rights of access to arable lands pre‑enclosure were also not absolute.^[141] Exclusion can come in many forms and “exists along a spectrum that may change in myriad ways over time based on context” and need not be thought of as “a binary . . . from open access to private.”^[142] One can zoom out a bit from a “rigid and narrow coupling of ‘enclosure’ versus ‘the commons’” to something broader but also more context‑specific, which recognizes enclosure as “a complex set of logics of inclusion and exclusion operating through a variety of spatial territories and networks.”^[143] Much of the exploration of enclosure among critical geographers and related social sciences tends to understand enclosure, capitalism, economic inequality, impediments to subsistence livelihoods, land commodification, regional depopulation, and environmental destruction as phenomena that go hand in hand.^[144]

A more multifaceted understanding of enclosure would help reinvigorate the concepts of commons and enclosure to reveal the dynamism and non-inevitability of our society’s choices for governing land and other resources, including energy.^[145] One way to articulate such a definition is to push these concepts beyond their usual homes in property and natural resources analysis in legal scholarship and apply a law‑and‑political‑economy methodology.^[146] The subsequent discussion articulates such a definition in an effort to capture enclosure as a prolonged political, economic, legal, and cultural process of contestation.

Centrally, this definition also seeks to reorient and contextualize the concept of enclosure as a vehicle of geographically flavored class conflict—a factor often missing from more technically framed analyses.^[147] It is based on a more capacious view of English enclosure as a story of class conflict. It also draws on articulations of the “second enclosure movement” in intellectual property, as well as interdisciplinary literature that embraces enclosure as a sociopolitical phenomenon in addition to a legal one.^[148] By identifying the multifaceted forces that shape an enclosure movement, this definition can also help illuminate non‑enclosing alternatives to addressing resource contestations.

I define an enclosure movement as encompassing five key characteristics. First, enclosure involves a population losing a shared property enjoyment, even if informal.^[149] This is probably the most obvious and least controversial component of a definition, given its centrality in virtually all definitions. In England, the shared resource was the arable fields. In the discourse on intellectual property enclosure, the shared resource was the public domain of ideas.^[150] I propose that the shared amenity in question does not necessarily need to align with Ostrom‑school definitions of a commons based on nonexcludability and rivalry because things can be shared or enjoyed collectively even without those characteristics. The shared property enjoyment also does not necessarily need to be considered formally recognized property because what counts as property, and whose property, is part of the overall arc of contestation.^[151]

Second, an enclosure movement involves coordination between the state and the economically powerful to facilitate the transformation of property through law and subsequently benefit from the transformation.^[152] This aspect was apparent in English enclosure as well. As English enclosure unfolded, the wealthier enclosing class tended to have closer relationships with governing institutions that gave them an advantage both in shaping law and benefiting from it. The following description notes the intersection of geography, class, and access to justice dynamics in English enclosure:

Under the parliamentary enclosure system, as it developed, any landowner could petition Parliament to initiate enclosure. Although the commoners could attempt to defeat the enclosure measure, that would require the poor to somehow acquire the wherewithal to oppose powerful landed interests. Few commoners were able to afford representation or travel to London to present their complaints against enclosure. Even if they did, commoners had little chance of succeeding against the more politically powerful gentry. Although protests did occur, including the burning of fenceposts and rioting, a commoner could not hope to “move a dim and distant Parliament of great landlords to come to his rescue.”^[153]

In other words, English enclosure was heavily facilitated by intervention of the state to reshape and reaffirm property relations. The excerpt above illustrates how that transformation worked to the benefit of the “powerful landed interests,” who possessed the capacity to both influence and wield the power of the state to their own advantage. The state and the economically powerful, in mutually influencing and supporting each other, were central to the achievement of English enclosure.^[154] As another example, similar dynamics were identified in the push for more private intellectual property rights: Its supporters lauded the state’s involvement in creating and protecting those rights, while the movement’s critics “mused darkly about the way in which the state [was] handing over monopoly power to a few individuals and corporations,” identifying the economically powerful as “the beneficiaries of the new property scheme.”^[155]

Third, an enclosure movement is based on a crisis narrative. Enclosure is justified by the argument that steps to transform property arrangements are necessary for the greater good; the greater good may also demand that enclosure be achieved quickly, at a large scale.^[156] This component, too, was evident in English enclosure.^[157] Parliament and others favoring enclosure justified it by “an appeal to the national interest.”^[158] The inefficiency of the commons system had become a crisis due to its role driving “the insubordination of commoners, the unimprovability of their pastures, and the brake on production represented by shared property.”^[159] Efficiency and the productive use of land therefore required enclosure. Similar rhetoric has justified the ratcheting up of private intellectual property rights: The extension of those rights was the only way “to guarantee the kind of investment of time, ingenuity, and capital necessary” to achieve creative and scientific innovation.^[160] Opponents of enclosure, then, may be framed as backwards, unnecessary, or standing in the way of progress.^[161] Enclosure is pursued for the greater good, which means that those who oppose it risk being discredited as the enemy of everyone.

Fourth, an enclosure movement affects the balance of rights of access to, and control over, land. Those who have longstanding, but informal, relationships with land risk seeing those relationships shrunk in favor of those with more formal rights.^[162] But perhaps more importantly, the formal rights will also be adjusted as the property transformation unfolds, reflecting some overlap with the previous factors.^[163] This component was central to English enclosure, for instance, in a variety of ways. In one thread of rights‑modification, early on in enclosure, each instance of parcel enclosure required unanimous consent of all affected landholders, reflecting a standard more friendly to peasants.^[164] Later on, the standard that evolved with the help of Parliament allowed enclosures to be imposed “on increasing numbers of dissenting landholders.”^[165] In a similar vein, the “copyhold” rights that peasants held—which were defined in relation to local custom—were diminished and eliminated in the interest of “leasehold” rights favoring larger landholders.^[166] Overall, this aspect can be understood as a process of formalizing and narrowing rights affecting property decision-making.

Fifth and finally, an enclosure movement is characterized by economic stratification, meaning it operates as an exacerbator of socioeconomic inequality. In English enclosure, “[t]he poor, in essence, became poorer,” unable to feed themselves and “earn a living independently,” instead becoming “desperate for a wage‑earning job.”^[167] This redistribution of property rights funneled the gains from more productive land to the increasingly small class of landowners. Advantages for the wealthy or well‑resourced alongside disadvantages for the marginalized can also be seen in intellectual property enclosure.^[168] The classic example comes from the illustrative case of Moore v. Regents of the University of California, in which the Supreme Court of California decided that medical research companies could profit immensely from John Moore’s bodily materials when he himself could not because his tissues were not his property, and he therefore was not entitled to a share of profits derived from the use of his cells.^[169]

In sum, an enclosure movement entails a restructuring of property relations. Such a movement is driven by political and economic power dynamics and cultural rhetoric that ultimately shrink and privatize the sphere of shared resources, disadvantage the marginalized, and benefit the wealthier, all based on a justification rooted in the greater good. Normatively, as discussed in more detail in Part IV, enclosure therefore contributes to a variety of problems, indicating that non‑enclosing alternatives are the more socially desirable policy pursuit.

Rural Resistance to Utility‑Scale Energy

As mentioned in the Introduction, a variety of novel land use pressures have caused contestations throughout the countryside, ranging from the proliferation of data centers to agricultural consolidation to corporations seeking carbon offsets.^[170] One among those pressures is the push to deploy utility‑scale renewable energy projects. As explored more in Part III, some of the dynamics surrounding contestations over large energy projects resemble the dynamics described in Part I articulating aspects of an enclosure phenomenon in property. Understanding the enclosure‑like aspects of large‑scale renewable energy deployment can in turn shed light on these other land use pressures and on the state of American property more broadly, in addition to shedding light on debates over approaches to renewable energy deployment.

This Part provides background describing the dynamics of the clean energy transition as it continues to unfold in rural regions.^[171] Section II.A provides an overview of the state of the clean energy transition and describes the energy transition’s common land use impacts in rural regions to date. Section II.B synthesizes literature on rural resistance to hosting utility‑scale wind and solar projects and related infrastructure installations, highlighting how the transformation of the countryside has direct impacts on rural identities and livelihoods.

The Impetus to Site Utility‑Scale Renewable Energy Projects in Rural Regions

To prevent the worst effects of climate change, the United States must reduce carbon dioxide and other greenhouse gas emissions, substantially and quickly.^[172] A concrete law of mandatory measures to prevent or “mitigate” climate change directly through such reductions has remained elusive for decades.^[173] Although the U.S. Environmental Protection Agency has repeatedly attempted, primarily under Democratic administrations, to impose mandatory limits on greenhouse gas emissions, those efforts have been repeatedly quashed by Republican administrations and an increasingly conservative Supreme Court.^[174]

Nonetheless, localities, states, and other federal institutions have implemented reduction targets and mandates, helping spur momentum toward decarbonization.^[175] With the electricity sector operating as a major source of emissions in the United States, transitioning electricity generation away from fossil fuels is a central focus of the overall goal to reduce emissions.^[176] Thus, to reduce emissions and decarbonize the electricity grid, numerous new clean energy generation installments must be built, quickly, to replace generation sources like coal‑ and natural gas‑fired power plants.^[177]

Questions of where, how, and in what form to build renewable energy generation projects are controversial. This leads to the important distinction between “utility‑scale” generation projects and smaller ones, often referred to as “distributed generation,” as well as other smaller‑scale, decentralized forms of electricity generation, storage, or distribution.^[178] Utility‑scale wind and solar farms can be defined as generation facilities that have “the capacity to produce one or more megawatt (MW) of energy and typically requiring five to ten acres of land per MW of generating capacity.”^[179] These are the types of wind and solar farms, for instance, that can increasingly be seen from airplanes. The classic example of distributed generation, meanwhile, is the solar panels private homeowners may install on their roofs.^[180] Other examples of smaller‑scale, decentralized electricity system installations include microgrids, community‑level generation sharing, and battery storage.^[181]

Given the scale and speed necessary for electricity decarbonization to ward off the worst effects of climate change, many clean energy advocates take it as a given that utility‑scale projects are an absolute necessity. Key benefits of utility‑scale projects include their relative efficiency and output compared to distributed generation installations and other smaller or decentralized systems.^[182] While the discussion in Parts III and IV complicates the question of the necessity of utility‑scale generation projects, this sense of urgency and prioritization of scale is understandable. As of this writing, at a mere 21.3 percent of U.S. electricity generation, low‑carbon energy production is already lagging behind what advocates say is necessary.^[183] Rates of renewables deployment have been increasing, however. The Inflation Reduction Act (IRA) of 2022 incentivized deployment and reduced market costs for renewables,^[184] which meant that, from 2022 to 2025, renewable energy production grew rapidly.^[185] Although a new era of federal obstructionism that has sought to roll back the IRA’s policies may slow the clean energy transition, experts believe federal obstacles are unlikely to stop the energy transition’s momentum entirely.^[186]

Wind and solar have emerged as the most important generation systems of the clean energy transition.^[187] Their importance, coupled with many stakeholders’ prioritization of utility‑scale projects, have rendered rural land central to the clean energy transition.^[188] Utility‑scale wind and solar farms are less dense installations than the mines and power plants to which our society is accustomed, meaning they are more spread out than power plants while producing less electricity.^[189] Experts estimate that clean energy deployment by way of these projects will require using up to 6 percent of the entire land area of the United States.^[190] However, that usage will be concentrated in the regions with the highest generation potential. Just as the United States encompasses regions known for coal, oil, and gas extraction and processing, certain regions are emerging as wind country and solar country.^[191]

These locational constraints also mean that new generation installations must be connected to transmission lines that transport electricity across long distances, as population centers and industrial activity are not usually located near the new generation sources.^[192] Those transmission lines are substantial, ugly industrial installations themselves and, like wind and solar farms, are often not welcomed by prospective host populations.^[193] Many of the proposed transmission lines do not exist yet, creating another layer of tension in the clean energy transition, especially as transmission lines often cross rural land without directly benefiting local populations.^[194]

Federal, regional, state, and local institutions, as well as private landowners and companies, all play a role in siting decisions, making these dynamics ripe for delay, controversy, and complexity.^[195] Trends in rural (and other) local governments’ exercise of their zoning powers have emerged as central to these tensions. Land use decisions—planning for community development, decisions about where different kinds of structures and activities can go, and shared local visions for a locality’s future—have traditionally been regulated at the municipal and county level.^[196] This local role is especially strong in Home Rule states, where local governments have more robust powers.^[197] But even in Dillon’s Rule states, which afford local governments only explicitly enumerated powers, land use and zoning tend to be under the local purview.^[198]

Thus, “unless a state has preempted local siting authority, a proposed wind or solar farm is going to require a permit from the local government based on unique, varied local land use frameworks.”^[199] Due to the controversial nature and high visibility of wind and solar farms, a trend has emerged of municipalities and counties imposing heavy restrictions on these types of projects.^[200] This gatekeeping function is a central concern in policy conversations on the clean energy transition.^[201] When residents “pack public meetings where elected town or county commissioners make land use approvals for renewable energy projects . . . [p]redictably, local officials—themselves either opposed to projects or facing a torrent of concerns from constituents—deny zoning permits for these projects in a growing number of cases.”^[202]

These trends are not uniform, however, and the energy transition to date might best be characterized as chaotic. Negotiations between local governments and developers wield major influence on permitting decisions.^[203] This is a concern because it makes siting unpredictable and fraught with issues of process and transparency. Negotiations between developers and landowners are also central, as developers typically enter into leases with landowners whose land offers siting potential.^[204] This, too, raises concerns about consistency, fairness, and process.^[205] In any event, it is often the neighbors of the landowner who oppose projects and express concerns about the burdens they are likely to bear, as explored more in the discussion that follows.

Rural Resistance to Utility‑Scale Renewable Energy Projects

Advocates of grid decarbonization often express concern about rural localities’ gatekeeping function and ability to impede the broader grid decarbonization project.^[206] Some commentary dismisses local concerns as mere NIMBYism—the phenomenon of people, impliedly for unvirtuous reasons, wanting necessary infrastructure only if it is Not In My Backyard.^[207] At the same time, just as that thread of commentary has ramped up proposals to exclude locals from decision‑making processes in order to expedite siting, others have recognized that locals’ concerns are both valid and complex. According to one report, “[t]he NIMBY explanation has been widely discredited as simplistic, pejorative, politically inappropriate, and unhelpful as a framework to explain public attitudes toward wind facilities both before and after they are built.”^[208]

A substantial body of literature documents and explores local populations’ reasons for embracing or resisting utility‑scale renewable energy installations.^[209] Those motivations are broad and diverse, like the sixty million people who inhabit the rural regions of the United States.^[210] This Part focuses on the motivations that are most relevant to the subsequent discussion of enclosure.

The discussion attempts to boil down those admittedly complex motivations into two important points. The literature suggests that, to many rural residents, the deployment of utility‑scale renewable energy projects feels like (1) a loss of rurality and rural identity, stemming from a loss of spatial openness, heritage, and traditional land uses; and that loss is (2) begotten in a way that seems offensive due to the coordinated efforts of, and concentrated benefits funneled toward, elite landowners, local government actors, powerful developers, and distant consumers, with questionable local advantages.^[211] As mentioned above, this discussion does not seek to paint utility‑scale renewables deployment as a horror story that is ruining lives. Many rural people also support and benefit from renewables deployment.^[212] But these two themes do shed light on why these dynamics provoke discomfort and arguably seem oppressive, even when discrete projects’ characteristics do not seem particularly egregious to outsiders.

A Loss of Rural Identity

Concerns about views and aesthetics arise frequently in literature on rural opposition to wind and solar farms and related infrastructure.^[213] Many rural residents express the sentiment that they simply do not want to look at solar panels, wind turbines, and electric transmission lines.^[214] Beyond the mere sight of these installations are the projects’ secondary extraterritorial impacts. Solar panels can have a glare; wind turbines can make whooshing sounds and shadow flickers, and may host a “a bright, blinking red light on the top” at night for air travel safety.^[215] Any new wind turbine becomes “a permanent and constant feature of the nighttime landscape.”^[216]

While these impacts might sound minimal compared to other industrial activity, they are nonetheless industrial and reflect a real transformation of countryside landscapes.^[217] They might also be particularly offensive to populations that have opted to stay in or move to regions where the lifestyle has been characterized by relative peace and calm. Other “distinct localized harms,” more acute during the construction phase of projects, include “increased vehicle traffic, aesthetic changes, and noise, that are uniquely location‑based. Thousands of acres of land are needed to produce fuel or electricity, thus literally requiring that development occur in the backyards of schools and homes, farm or ranch fields, and the like.”^[218]

The latter point highlights another common concern: the loss of local lifestyle and identity on the part of local inhabitants and geographies.^[219] Changes to landscapes can affect the essence of the area and a longstanding sense of tradition.^[220] Residents in siting communities “have seen their surroundings transformed from rural countryside and farmland with wide‑open vista to large‑scale, industrial energy‑production facilities.”^[221] One respondent in a 2021 study of solar deployment in Michigan explained, “I just think that there’s something to be said for preserving the agricultural land and the heritage of this area. Once they ruin that, it’s never gonna come back. There’s always going to be parts of it that’s ruined.”^[222] The study concludes that solar farms’ visual impacts “are much greater than just [their] aesthetic or visible impacts . . . . [That] impact includes effects on residents’ attachment to place, their perceived loss of amenity, and changes to the character of the landscape.”^[223]

Farmland often offers the best siting potential for utility‑scale solar projects “because of the large land parcels and generally level terrain.”^[224] Many wind turbines are also sited on farmland.^[225]The installation of a solar farm tends to mean that agricultural activity is not as feasible, although the prospect of “agrivoltaics” has potential to have both land uses simultaneously through co-location.^[226] Prior land uses, including agricultural land uses, can often continue with the introduction of wind farms.^[227] However, wind farms bring with them more significant ecological impacts on local wildlife that also have a relationship with the area’s rural character.^[228] From an environmental standpoint, “[t]he large amounts of concrete and rebar used below the earth to stabilize turbines, the effects on weather, and the effects on bats and birds are among the most prevalent environmental and ecological worries for opponents of wind farms.”^[229]

A significant thread of local opposition stems from objections to “the industrialization of previously agricultural communities and the displacement of prime agricultural soils, among other concerns.”^[230] While many residents do not want “prime agricultural land” used for solar farms, “local officials and developers” have “identified significant constraints in siting [solar farms] elsewhere.”^[231] Agricultural lands, recreational areas, and natural ecosystems may all be threatened by the introduction of this new infrastructure.^[232] Projects’ occupation of more land may also mean less land available for tenant farmers to make a living.^[233]

These concerns can be understood holistically as a concern about reduced rurality. “Rurality” is, of course, a contested trait.^[234] According to most legal and conceptual definitions, spatial openness is at the heart of the concept.^[235] Rural is often defined as simply anything other than urban.^[236] Urban, in turn, is often defined as density—the presence of a certain critical threshold of people, buildings, activities, and development, situated relatively close to one another.^[237] Rurality, then, is synonymous with absence and openness. It reflects a “lack of materiality” and an “absence of the type of substance associated with the built environment and with population density.”^[238] The fewer people and structures there are in a place, the more rural it probably is. By definition, industrialization poses a threat to rurality’s potential to endure.

Rural landscapes’ relationship to a state of relative nondevelopment can lead rural people to “see themselves as being more embedded in the environment” than other populations and to have more intimate relationships with landscapes and nature.^[239] Interdisciplinary commentators have explored rurality’s relationship to culture, politics, or identity in a way that the law does not emphasize.^[240] Among these more nebulous or subjective aspects of rurality, farms are an important cultural signifier, even if the vast majority of modern rural residents have only indirect relationships with agriculture.^[241] Nevertheless, conceptions of rurality often include connections to food production. The countryside is also often portrayed as home to a certain atmosphere and a certain way of life—more bucolic, less busy, less industrial, and a place where things happen more slowly.^[242]

The concerns locals express about siting relate to these aspects of rurality and the threat large energy projects pose to that landscape and sociocultural characteristic. That reduced rurality entails components of reduced visual and physical openness, increased industrialization, and a fundamental change to the region’s identity.^[243] This change includes novel pressures placed on traditional agricultural land uses and natural ecological systems, both of which are longstanding, inherent features of countryside life.

Begotten in an Offensive Way

In addition to the substantive impacts of the energy transition, respondents in siting studies express a variety of concerns about process.^[244] A thematic review of the literature starts to tell a story about what the siting process often looks like. That process is not as cut and dry as how it might be outlined in a local permitting ordinance, if one exists. Rather, the literature evinces a widespread pattern of opaque decision‑making and secretive, ad hoc deals.^[245]

As a typical first step, a developer approaches a private landowner to discuss the prospect of a lease.^[246] In turn, the developer and the landowner approach local government officials to discuss the prospect of a permit, potentially negotiating for local perks in exchange for a greasing of the wheels for the project.^[247] After these groups establish this foundation, the project is introduced to the public. Residents living near the proposed development are then given an opportunity to weigh in. The local public may already feel excluded and alienated about how the process has unfolded so far.

The perception, then, and indeed the reality, may be that local and nonlocal stakeholders are coordinating their efforts to see the projects through whether locals want them or not. There may be public participation, but that does not feel particularly meaningful when there is already a predetermined outcome. For instance, in Ochoa, Cook, and Weil’s 2023 study of wind development in the Midwest:

Participants . . . perceived that “early stages of wind farm development” were not merely opaque, but “intentionally secretive, with the goal of tilting county officials and the powerful, often‑absentee owners of the largest farms strongly in favor of establishing the prospective wind farm.” One participant described developers tending to “go first to the largest, more prominent landowner in the area” who is “always the most despised.” Other participants expressed concern about coercive lease bargaining dynamics, a lack of requirement to record leasing agreements in county records offices, “byzantine” and exclusionary processes to participate in local government decision making, corruption among local officials, public meetings shaped by “distrust, intimidation, rancor, and fear,” and a sense that these processes and company arrogance turned otherwise “agreeable or neutral” people vehemently against the projects. Residents often “felt they had no means to affect decisions or extract at least some benefit to mitigate the harm they experience from the wind farm that now stands in that part of Indiana.”^[248]

In the solar literature, researchers have identified patterns of accusations related to “deceitful behavior by developers.”^[249] Developers, elite and absentee landowners, and local government officials are often seen to be strategically aligned.^[250] The main beneficiaries of the projects, then, are understood to be the large landowners who contract with developers, the developers themselves, and consumers in distant cities, in addition to local officials depending on whatever rewards they might be seeking.^[251]

Altogether, concerns about utility‑scale rural renewable energy deployment extend well beyond the effects of a wind turbine on the view. This characterization suggests that it is unsurprising that local opposition might emerge, or that pressure may be put on local government actors to block projects. The coordination of local power players does not necessarily produce the outcomes they desire, which is illustrated by many resistance efforts’ successful blocking or delaying of projects.^[252] But these process issues contribute to the widespread social, political, and economic tumult reflected in this aspect of the energy transition.

The Enclosure‑Like Aspects of Utility‑Scale Rural Renewable Energy Deployment Patterns

Many explanations have been advanced to characterize rural residents’ skeptical reactions to proposals for large energy projects. Those explanations include that they are misinformed; they are politically conservative; they are selfish; they have not been adequately engaged by developers; they are not receiving their fair share of the profits of clean energy; and they have not been afforded enough opportunity for public participation.^[253] The discussion that follows explores an alternative, or perhaps a complement: They are reacting to enclosure‑like processes in the same way that rural populations have reacted to enclosures for the past five hundred years.^[254] In other words, rural residents may be resisting structural rearrangements of traditional property relations in addition to discrete development proposals. At their heart, those structural rearrangements involve efforts to industrialize land long distinguished by its nonindustrial nature. Superficially, these disputes might look like NIMBYism. But the country’s extractive relationship to rural resources suggests that something deeper and more significant is unfolding.

That explanation helps shed light on rural resistance to the diverse land use pressures rural residents face today. As mentioned before, utility‑scale renewables are neither the only rural land use pressure nor the most egregious. Data centers proliferating on rural land, for instance, are “one of the most consequential changes to the landscape” in the West.^[255] Communities increasingly find themselves poised to oppose proposed centers, which “can use several million gallons of water a day for cooling,” in addition to the centers’ profound energy needs.^[256] Like with other land use trends, local governments face the prospect of preemption in their decision‑making power to keep data centers out.^[257] The data center boom will increase demands on existing fossil fuel infrastructure, which will make the need for more renewables deployment all the more acute. These diverse land use pressures are therefore related. The combined eventuality of all of them would seem to portend an infinite cycle of occupation and consumption of rural land, air, and water.

This Part presents the Article’s central argument that utility‑scale renewable energy deployment in rural regions exhibits characteristics of an enclosure movement. The discussion assesses and elaborates upon the conditions described in Part II as compared with the definition of enclosure articulated in Part I. That assessment reveals substantial overlap such that the theory of enclosure should be considered a relevant explanation for the dynamics playing out in the rural energy transition and broader patterns of the commodification and industrialization of rural land. This is not an argument that utility‑scale energy projects are inherently bad or undesirable land uses. It is an argument, though, that U.S. property relations continue to evolve in the direction of exclusion, commodification, and capitalist accumulation, even when it seems like they have reached their maximum capacity to do so. The multidimensional effort to site this one form of industrial project illustrates one chapter in that story. This matters for questions of how our society defines property and determines who benefits from it and why. It also matters for determining whether this approach is the most socially desirable avenue to addressing climate change.

The discussion proceeds from the premise that enclosure can be characterized by five traits: (1) a population losing a shared property enjoyment, even if informal; (2) collusion between the state and the economically powerful to facilitate and benefit from the transformation of property; (3) a crisis narrative with aspects of scale and speed justified by conceptions of the greater good; (4) those who have informal, but meaningful, relationships with land losing to those who have formal rights—and the formal rights being adjusted as the property transformation unfolds; and (5) those with more resources gaining economic advantages compared to those with fewer resources.

As each component is introduced, it is applied to the past twenty years of evidence of patterns in utility‑scale rural renewable energy deployment. Overall, the patterns paint an enclosure‑like picture. That picture stems from the reduction of rural spatial openness and spread of rural industrialization; the centrality of corporate actors and their empowerment by government institutions; the life‑or‑death demands of the decarbonization impetus; efforts to subjugate collective land relations through preemption, permit reform, and strengthened private property rights; and the concentrated profits mostly accruing to large landowners and private developers.

Reductions in Rural Spatial Openness

The first component of the definition of an enclosure is that some form of shared property enjoyment must be lost or reduced.^[258] This aspect is easiest to see when there is a collectively owned field that becomes a privately owned field. However, property, like enclosure, can be viewed in more abstract terms as a set of dynamic relationships.^[259] This analysis proposes that widespread patterns of rural industrialization—including through large energy projects—are reducing an important condition associated with rural places and lifestyles: a state of spatial openness, in the form of relatively sparse physical occupations of space by manmade structures and relatively low population settlement.^[260] I propose that rural spatial openness is a longstanding, integral property characteristic; that it is a shared, free, advantageous attribute of land that locals enjoy and benefit from despite not necessarily owning the land; that this shared attribute has a longstanding cultural norm of characterizing rural regions and benefiting rural populations, and indeed is central to shaping rural identity and heritage; and that the loss of that spatial openness through the occupation of space by large energy projects is a meaningful loss for nonlandowners. In fact, because of the past five hundred years of enclosing patterns in the Western world and rural regions in particular, the rural state of free, shared, spatial openness is one of the last free, shared things left in American property.

Few scholars have theorized about rural space and what rurality and rural spatiality mean, especially in relation to law or property theory.^[261] Yet, as mentioned above, open, sparsely occupied, physical space—whether through a lack of population density, a lack of development, or a lack of settlements or other activity—is central to almost any definition of “rural.”^[262] Lisa Pruitt emphasizes the importance of open space to a state of landscape rurality. She proposes that the “material characteristics” that shape the “character of rurality” and “rurality’s associated sociospatial features . . . include low population density, small population clusters, and a dominance of what is perceived as nature over the built environment.”^[263] That spatiality helps maintain rural as “the counterpoint to modernity,” shaping “the social and cultural characteristics associated” not just with rural places and people but with their relationships with law.^[264] In short, a state of open spatiality and relative nondevelopment is central to rural landscapes and ways of life.

Jessica Shoemaker, meanwhile, has documented patterns of increasing absentee ownership that have resulted in the growing separation of the concept of legal ownership from actual practices of physical possession and use along with the implications of that disconnect for the character of rural landscapes.^[265] She notes how the separation of the two means that absentee landowners who treat rural property as an asset, as opposed to an object of home‑ and place‑making, increasingly escape the consequences of the activities they pursue on the land.^[266] This means that contemporary choices as to how physical occupations of rural land look can affect the local population substantially more than the actual owner.^[267] In other words, ownership is not a necessary precondition for a local population to have significant relationships with other people’s property.^[268]

How locals enjoy or take advantage of a state of rural spatial openness or the relative absence of development can vary. Subsistence activities, such as hunting, fishing, and foraging—the types of activities English peasants lamented losing during enclosure—have not completely died out, even on private property.^[269] Other traditional land uses, such as agriculture, create the foundation for local economic activity and shape opportunities for jobs and livelihoods.^[270] A shared bucolic atmosphere can indeed be a region’s entire collective commodity. Vineyard regions like New York’s Finger Lakes, for instance, create a holistic atmosphere combining countryside life, agricultural activity, cultural appeal, and outdoor recreation that are both shared and greater than the sum of their parts.^[271] Openness for views of pastures and lakes, for vineyard cultivation, and for tranquility is essential, even though it is neither guaranteed nor owned collectively.^[272] But the uses and enjoyment of shared spatial openness are as varied as rural residents themselves.

Rural spatial openness can even be characterized as a commons resource under the neoclassical economic model. Although rural populations do not have formal rights to enjoy the openness of their neighbors’ land, commons‑like resources and their shared use can be “social and intangible in nature,” as opposed to formal rights or entitlements.^[273] A state of spatial openness is a classic example of a “nonexcludable characteristic” associated with commons resources.^[274]

Excludability is the characteristic of being able to prevent people from using and/or accessing a good or service. The cost of keeping individuals from enjoying the benefits of a nonexcludable resource is prohibitive if not impossible. Examples of nonexcludable resources include air and water, biodiversity, and fish in an ocean. . . . Because the resource is nonexcludable, it makes it difficult, if not impossible, to block sharing.^[275]

In other words, private rural landowners are not required to let their neighbors enjoy the openness of their land indirectly. But the landowners also cannot stop them from doing so—without erecting tall or numerous structures. Ultimately, the openness of rural land, and a collective enjoyment of that openness, are longstanding norms shaping property relations in rural regions. And the collective enjoyment of openness is hard or impossible to eliminate—unless there is a novel occupation of space.

Another characteristic associated with commons resources is “rivalry.”^[276] “A good is rivalrous if one’s use of the resource reduces another’s ability to use it. In other words, an individual’s use of a resource makes the resource less available for others.”^[277] Again, the spatial openness of rural land aligns. While someone might passively and indirectly enjoy their neighbor’s open, agricultural land use for decades, the moment their neighbor builds on the land, that openness becomes less available to them. They can no longer enjoy or participate in the openness. No other land use can happen simultaneously in that exact same spot. Thus, while the trade‑off of the rivalrous land use is perhaps borne most directly by the landowner who installs the large energy generation project on her land, it is also borne by her neighbors. Again, the enjoyment of openness is lost.

These analyses lead to the conclusion that new physical occupations of rural land—especially large industrial occupations pursued by distant owners—have significant implications for local land relations.^[278] When open rural space is newly physically occupied by things or people, the area in question becomes less rural. Locals lose something associated with property—potentially other people’s property—which they previously enjoyed for free, even if it is not direct physical access.

Thus, large energy projects’ relationship to rural spatial openness is simple: Those projects take up a lot of space and therefore reduce openness. That informally shared property enjoyment is reduced. Rural populations’ concerns about the energy transition reveal that the threat of this loss means something to them; they have said so repeatedly. This suggests that rural spatial openness matters for property relationships, and locals’ relationships to openness should not be dismissed as shallow concerns about aesthetics. Spatial openness is a feature of rural property traditionally enjoyed collectively, and new occupations of space mean it is reduced or lost.

This analysis does not argue that rural neighbors have a “property right” or entitlement to the spatial openness of their neighbors’ land. This is not an argument that neighbors have a right to enforce implicit negative easements that they hold to mandate nondevelopment on all the land that surrounds them.^[279] It is also not an argument that a rural area’s designation as rural somehow imposes an invisible floating nondevelopment zoning requirement on the land—although rural populations have whatever land use participation entitlements as may be outlined in local law.^[280] This argument is also not meant to be sentimental; this is not an attempt to lament any change or development that happens in any rural locality. It is meant to establish, however, that the loss of rural spatial openness to utility‑scale energy and other forms of industrialization is a real loss that reflects an aspect of structural change in property relations due to the very essence of what it means to be rural. It is this state of spatial openness that rural populations may be enclosed from as property relations are rearranged. The displacement from a novel occupation of openness may not be as tangible or egregious as someone being evicted from a previously shared field. But it is still a version of displacement worthy of discussion.

This argument also does not propose that any construction or development on rural land represents an enclosure. It is not the case that each new house, industrial facility, or other structure in a rural area effectuates an enclosure because it represents a new occupation of space that detracts from collectively enjoyed spatial openness and potential other land uses. In this case, reducing rural spatial openness through utility‑scale energy proliferation is a necessary but insufficient piece of the comparison with enclosure. But not every new construction represents a class conflict involving restructured property relations, as outlined in the factors explored below.

Government and Elite Domination of Permitting Processes

The second component of an enclosure movement entails coordination between the state and the economically powerful to facilitate and benefit from a rearrangement of property relations. As discussed in Section II.B, utility‑scale renewable energy deployment in rural regions is not widely viewed among rural populations as an inclusive, collaborative, or fair process.^[281] To the contrary, permitting processes are often understood as a coordinated effort among elites and those with power—including large landowners, private developers, and government players at the local or state level—to see projects through to completion with only superficial consideration of local impacts, priorities, and desires.^[282]

The siting literature bears this overall impression out in two key ways. The first is the recognition that defensive, exclusionary processes driven by a handful of power players are a common pattern for siting proposals to unfold.^[283] Projects are often presented to the public after many key decisions have already been made, with the public sidelined for as long and significant a fashion as a project’s advocates can manage.^[284] One study describes how residents become “frustrated by the lack of meaningful consultation with community members in many cases, and concerned that governments and developers are making decisions behind their backs, apart from limited local government hearings.”^[285] A lack of consistency and transparency seems to be a feature, not a bug, of this aspect of the clean energy transition.^[286] Much of the negotiation “involves one‑off deals between renewable energy developers and local governments, in which the developer offers the town a new firetruck or park, and the conditional zoning approval that is necessary for the project magically appears.”^[287] Where state governments are in charge of siting projects, the streamlining of process becomes even more of a priority and equitable considerations are de‑emphasized.^[288]

The second key way in which rural populations’ sense that their influence over local land use is under threat is the presumption that these projects must be sited, as reflected in many of the policy developments and surrounding conversations in the energy transition.^[289] Ample discussion has emphasized that community engagement and community benefits can increase local receptivity to projects.^[290] However, a strong rhetorical thread within this discourse and related policies embraces the idea that potential host populations should not, in fact, be allowed to refuse projects.^[291] In an illustrative quote from one recent study, an interviewee said, “I felt that the attitude of the city was, ‘this project is going in. We are just gonna listen to these yokels from the boonies spout off until they’re done and then push this baby through.’”^[292] Respondents in that same study “explained their inability to affect change via power imbalances, sometimes legal power.”^[293]

While the predetermined outcome may be a logical premise in the context of climate policy, it confirms rural populations’ impression that a variety of stakeholders do, in fact, want to steamroll them.^[294] Community engagement and public participation are substantially different vehicles if the public is not actually meant to be able to shape outcomes.^[295] Thus, calls for enhanced community engagement or public participation can look more like calls for pacification. Further, to frame this aspect of deployment challenges as a mere policy weakness that can be tweaked through reform or best practices overlooks the longstanding nature of the energy industry and federal, state, and local governments’ efforts to empower it.^[296] While studies suggest that developers engaging with communities early and often can help facilitate successful siting processes, developers do not necessarily want to facilitate community engagement,^[297] or they want to do so on narrowly controlled terms.^[298]

The role of the local government in all of this is one of mixed hats with competing pressures. They are beholden to the ever‑present goal of economic development and filling municipal tax coffers on the one hand and appeasing their constituents on the other.^[299] These mixed loyalties of local governments help explain both local governments’ impulse to overreact through strict regulation and other stakeholders’ impulse to centralize siting decisions at the state level where there is even less institutional accountability to locals. In any event, once again, an aspect of the tale of English enclosure—facilitated by manorial lords, entrepreneurs, and Parliament alike, to the detriment of lower‑class agrarians whose opportunities for input over local property were ever‑shrinking—is reflected by the main actors spearheading utility‑scale renewable energy deployment.

The Life and Death Decarbonization Impetus

The third component of an enclosure movement involves a narrative about the urgency of transforming property and rearranging property rights, with aspects of the need for scale and speed, justified based on conceptions of the greater good. Because enclosure is justified by appeals to aggregate welfare, it also means that those opposing enclosing forces are standing in the way of progress. In other words, “those rioting against enclosures and the inequalities they produce” become “reimagined in the sociopolitical consciousness as an enemy in need of domestication” and “as recalcitrant vagabonds in need of discipline and incarceration.”^[300]

The decarbonization imperative is regularly framed as an emergency warranting swift, radical action.^[301] This has led to a “prevailing focus on efficacy and efficiency,” which means that considerations of equity are often raised as afterthoughts or dismissed as frivolous indulgences.^[302] Scholars and activists have cautioned of a new era of sacrificial green energy deployment practices that do not have the exact toxic footprint of the fossil fuel era but nevertheless impose undue burdens on marginalized places and populations, all rationalized by the need to address the climate crisis.^[303] A rise in “climate change fundamentalism” has led many decarbonization advocates to argue that questions of equity “should take a back seat if they too cause delay” in renewable energy deployment.^[304]

The urgent nature of decarbonization is in turn helping to justify measures that reduce prospective energy host communities’ avenues for input on local land use, as well as other avenues of democratic decision‑making.^[305] Obstructionist rural populations are often framed as standing in the way of progress.^[306] As one example of this dynamic being implemented into law, in 2021, Illinois passed the Climate and Equitable Jobs Act (CEJA) which declares the state’s aim to provide reliable energy services as efficiently and cost‑effectively as possible.^[307] One study concludes that, by preempting local government involvement in siting decisions,

Illinois set a precedent in energy governance that justifies limited local participation in energy policies and shifting governance authority upwards to 1) enhance the state’s ability to make progress on climate change and 2) advance a particular vision of equity. . . . With the urgency to act on climate change palpably increasing, other states or national governments may choose to reduce or eliminate meaningful participation in energy decision‑making to make progress on climate action.^[308]

As discussed in the next Section, a trend of changing governance regimes to limit local avenues for input based on the climate crisis narrative is indeed emerging. This framing of climate change as an emergency is, of course, not incorrect.^[309] This analysis does not contest the science of climate change or dismiss the damage already wrought by increases in extreme weather patterns. Nevertheless, urgency and rationalizations based on the greater good are characteristics of an enclosure movement.^[310] Conceptions of what property transformations constitute “progress” evolve and adapt depending on the particular societal needs of the time.^[311] It so happens that, right now, the need is decarbonized electricity. This analysis does not suggest the needs are never real or are always arbitrary or invented. But enclosures need a rationalization, and a persuasive one at that. The urgent, widespread need for quick, readily available renewable energy is the rationalization for these enclosure‑like patterns.

The Movement for Preemption, Permit Reform, and Private Property Rights and Diminishment of Property’s Cultural Role

The fourth component of an enclosure movement is that those who have meaningful, but informal or weaker, relationships with property will see those relationships shrunk in favor of those who have formal rights—and the formal rights will be strengthened as the property transformation unfolds. As discussed throughout this Article, rural populations often have a shared connection to the state of spatial openness that surrounds them.^[312] That relationship may be recognized as legally salient, such as through protections for subsistence activities, or it may be more informal, such as through locals’ enjoyment of the bucolic landscape for personal or professional advantage. Meanwhile, the decarbonization impetus has motivated advocacy for preemption or other restriction of avenues for local influence over land, reforms of permitting processes to expedite siting processes, and stricter enforcement of private property rights in order to limit nonlandowners’ ability to impede projects.^[313] In short, then, the property dynamics of the energy transition involve a shift in the balance of property relations: The often‑informal norm of relating to spatial openness is being undermined and shrunk while formal property rights are being expanded and strengthened to facilitate the transformation of property.

Even without reform, the rural population’s general relationship with the land—one that is not necessarily formally recognized or protected—stands in stark contrast with the landowner’s and the developer’s. The landowner, as owner, does indeed have a full set of property rights, limited as they may be by local land use restrictions.^[314] Those rights are robust and protected by law. So, too, are the developer’s rights; just as the landowner can point to a deed, the developer can point to the lease it entered with the landowner.^[315] They have formal legal instruments and the law on their side. In terms of legal rights and remedies, locals may have zoning, permit processes, or some form of lawsuit, but otherwise they are left to agitation and protest despite the land’s impacts on them. Their means of determining the future of the land that surrounds them are already weaker than formal property rights’ holders.

The overall thrust of reform efforts in this space is an effort to make the formal rights‑holders’ rights even stronger than the already relatively weak protections for community land relations. More than half a dozen states, including California, Illinois, Maine, Maryland, Massachusetts, Michigan, and New York, have taken steps in the past several years to limit potential energy host communities’ ability to participate in land use decision‑making over energy projects through preemptive measures structured in various ways.^[316] Other states, such as Minnesota, Washington, and Wisconsin, already have centralized state siting processes for large energy projects that limit locals’ avenues for input.^[317] While these developments are often understood in terms of land use and local government law or energy democracy, they are also relevant to the makeup and constitution of property rights. They shift the balance of power and influence over land further in favor of the owner and less in favor of the local public.^[318]

Changing the law to facilitate disruptive land uses in favor of those who already have the strongest legal entitlements over the protesting community is a practice consistent with enclosure movements. Preemption tilts the scale further in favor of formal rights over informal norms in relation to property.^[319] These legal frameworks, and others being advocated, operate to restructure local land and property relations.^[320] Preemption is a form of exclusion from land through reduced opportunities for control. It is not the type of exclusion typically associated with the landowner’s right to physically exclude others from their property. But preemption is nevertheless a form of excluding residents near land from asserting and protecting their relationships with that land.

While the number of states that have taken the preemption route has been growing, calls to pursue preemption more broadly or engage in the reform of permitting processes to limit locals’ avenues for input over infrastructure have loudened throughout the country.^[321] Those calls are not generally coming from rural residents but from outsiders who perceive rural residents to be standing in the way of progress.^[322] This, too, is a call to further restructure land relations: Give people living near the land less of a say over its management so it can be impressed into service for different purposes. This analysis does not necessarily mean to suggest that all of these developments are inherently unjust or misguided. The dynamic can nonetheless be described as a movement to restructure the legal arrangements that shape people’s and places’ relationships with land.

Features of Economic Stratification

Finally, the fifth component of an enclosure movement is an element of economic stratification, or an entrenchment and exacerbation of geographic and socioeconomic inequality. A hallmark of English enclosure was that the newly enclosing class became more enriched through the commodification of land while peasants bore the brunt of economic and geographic displacement.^[323] Thus, it is important to recognize that a condition of rurality has class dynamics associated with it, in addition to spatial dynamics.^[324] In turn, recognizing rural populations as a marginalized population shows that imposing the renewable energy burden on them disproportionately—at least, without aggressive redistributive interventions—stands to exacerbate rural socioeconomic burden while simultaneously enriching relatively privileged landowners, private developers, and urban consumers and localities.

Rural populations in the modern United States, compared to urban and suburban populations, experience, on average, more challenging economic conditions.^[325] “In the United States, 85.3 percent of persistent poverty counties—those counties where 20 percent or more of the population have lived in poverty over the last 30 years—are rural.”^[326] Rural populations are, in general, older and experience more health challenges than other populations,^[327] make fewer wages, and face barriers to accessing a variety of resources and services that urbanites take for granted.^[328] They are “at greater risk of dying from heart disease, cancer, unintentional injury, chronic lower respiratory disease and stroke than their urban and suburban counterparts.”^[329] This is not to suggest that urban and suburban populations do not also face challenges. Nonetheless, the data reveal that rural residency itself has a class component to it.

Rural regions have also often already played a sacrificial, extractive role over the course of the nation’s development. A diverse body of literature has explored patterns of government working with industry to facilitate “parasitic extraction from the rural to serve urban needs,”^[330] whether in the realm of energy production, destructive agricultural practices, or other forms of natural resource exploitation. As sociologist Loka Ashwood observes, “The gap between urban prosperity and rural burden is largely old news for rural scholars. Consolidation of ownership over the means of production and the metabolic rift cultivated by rural resource extraction for largely urban consumption has left many rural communities depopulated and poor.”^[331]

Thus, the rural energy transition risks entrenching inter‑region socioeconomic stratification. To revisit the Illinois example, commentary has criticized Illinois’s law as an exacerbating force for the state’s urban-rural divide because of its redistributive effect, concentrating burdens in rural areas and funneling benefits toward urban ones. CEJA, which centralized state energy siting authority and preempted local governments, “has been perceived to exacerbate” the state’s “rural‑urban dichotomy by distributing tangible benefits of an energy transition to urban areas and the costs, in the form of clean energy infrastructure, to rural communities.”^[332] The study’s authors note the paradoxical, contradictory role conceptions of justice seem to play in reforms such as this. They observe, “[P]olicymakers argue they must limit democratic participation to fully implement CEJA but in so doing contradict the community‑ and place‑based approaches highlighted in the literature as necessary for a just transition.”^[333]

In addition to inter‑regional inequality, the energy transition also risks entrenching and exacerbating socioeconomic stratification within rural regions. Large renewable projects’ proliferation in lower‑income, more sparsely populated places supports both points.^[334] Although utility‑scale renewable energy is often framed as an essential public imperative, private gain is nevertheless at the heart of deployment patterns. Studies have repeatedly shown that the main beneficiaries of project siting are landowners and private developers who enter into leases, in addition to potential benefits for government institutions.^[335] And the discussion throughout this Article has already explored how landowners are increasingly a different, and more privileged, class than rural residents as a population. The energy siting literature shows that at least some of the local tension stems from differences between the local population writ large and the local landowners who stand to benefit most from entering leases with developers.^[336] Thus, these purportedly public improvements are fundamentally connected with concentrated private gain.^[337]

A counterargument to these concerns is that there is potential for energy deployment’s economic gains to be redistributed through local government tax coffers, community benefits, or other local advantages. That potential is real; case studies and success stories already illustrate that redistribution can happen and have desirable impacts. The default condition, however—a system premised on private property, private infrastructure development, and decades of growing socioeconomic and geographic inequality—is that the transition will entail a variety of inequitably distributed burdens and benefits.

Even if the energy transition’s inequitable distributions of burdens and benefits can be corrected or mitigated, this feature of economic stratification is characteristic of an enclosure movement. Property owners, developers, and urbanites stand to gain the most from the novel uses of property and unfolding rearrangement of property rights. While locals might gain, deployment patterns nonetheless demonstrate a trend toward economic gain for the already privileged.

Put all together, these five aspects of rural renewable energy deployment today exhibit the traits of an enclosure movement. Overall, the impingement on rural spatial openness and rise of rural industrialization; the centrality of corporate actors and their empowerment by government institutions; the life‑or‑death demands of the decarbonization impetus; the subjugation of cultural norms and informal rights through preemption and other measures to strengthen private property rights; and the concentrated economic benefits of the transition all paint an enclosure‑like picture. Holistically, this depiction suggests that these dynamics playing out all over the country are greater than the sum of their parts. These are not merely everyday land use politics, but a structural rearrangement of relationships to property through the ratcheting up of exclusionary frameworks, pursued in the name of addressing climate change.

Normative Implications of Recognizing Patterns of Enclosure

As mentioned in Part III, one of the main implications of recognizing patterns of enclosure is simply the phenomenon’s descriptive, explanatory potential. “[T]he cost of enclosing . . . resources can have extremely negative effects on society, yet these costs often go ignored because we lack rigorous/systematic ways to illustrate their operation.”^[338] Efforts to capture the dynamics of the rural energy transition as everyday land use politics or instances of environmental injustice do not quite encapsulate the contestations that are unfolding. The comparison with enclosure helps characterize these seemingly novel conditions, synthesizing elements of land use, geography, culture, politics, class conflict, and property as they interact with each other. The comparison contextualizes rural resistance to novel forms of industrialization as predictable because enclosures often encounter resistance.^[339] This characterization helps normalize rural cultural and political reactions, casting doubt on rural backwardness as an explanation for these phenomena. It instead suggests that structural change to property relations is at the fore.

The enclosure comparison also has normative implications for law and policy. Enclosure is a form of dispossession, rendering people “no longer able to share a commons.”^[340] It “erodes ‘our democratic commonwealth’” and causes harm beyond its own contours.^[341] This Part now turns to what efforts in the direction of anti‑enclosure—or restoring the commons—can look like. Section IV.A discusses implications for energy policy, proposing that non‑enclosing energy alternatives are possible and preferable. Section IV.B then addresses the implications of this analysis for property law and theory, emphasizing the ongoing impetus to resist property concentration and commodification.

Implications for Energy Policy

Because processes of enclosure tend to be disruptive forces of injustice and socioeconomic stratification, non‑enclosing energy alternatives are preferable.^[342] They are also possible. A helpful guiding principle is that where enclosure‑like forces are building momentum, the antidote to their influence is an embrace of measures to protect and return to frameworks of resource sharing that look more like commons management. This Section assesses the anti‑enclosing potential of community solar gardens, which are “[s]maller‑scale solar farms that allow residents to subscribe to a reliable supply of local solar energy with no upfront cost.”^[343] They are often located on already‑disturbed or under‑utilized spaces, “like capped landfills, superfund sites and the rooftops of local institutions and businesses.”^[344] They have been framed as options for energy provisioning that “meet both needs and values,” analogous to local, sustainable food provisioning as an alternative to industrial agriculture.^[345]

Community solar gardens offer one example of an alternative to utility‑scale deployment patterns that can help maintain rural land relations while reconciling those relations with socially desirable renewable energy development.^[346] Community solar gardens, or “community shared solar,” do not tend to recreate enclosure‑like dynamics the same way the movement for utility‑scale projects does. If enclosure is characterized by loss of a collectively enjoyed open space, imbalanced class power dynamics, and exclusionary restructuring of property, community solar gardens illustrate an alternative that often achieves the opposite effect.

Community solar programs offer an option at the middle scale between rooftop solar and utility‑scale solar. They are larger than residential rooftop installations and not hosted on a given consumer’s property, but they are typically smaller than utility‑scale solar and subject to alternative ownership structures.^[347] Studies suggest that this model “permits higher local control over energy, as well as command in how an expanded revenue base from said energy might be used by a locality.”^[348] Importantly, community solar “can also contribute to collaborative emissions reductions goals as well as overall community cohesion.”^[349]

The past several years have seen legal developments at the state level facilitating the deployment of community solar.^[350] Colorado, Minnesota, Massachusetts, New York, and Oregon each have enabling legislation of note.^[351] Community solar gardens or similarly structured wind projects are not inherently forces of anti‑enclosure, and they are also not without flaws.^[352] But the frameworks that facilitate them and their implementation on the ground reflect a set of principles that have a lower risk of recreating or exacerbating enclosure‑like processes. Those principles reflect several key concepts as central concerns rather than afterthoughts, including basic respect for preexisting local land uses and the lack of a need to supplant those uses or fundamentally restructure rights of control; collaborative processes and ownership models; and fundamental features of wealth creation and redistribution. Such approaches should be considered important alternatives to measures that are designed more to slow or mitigate large projects’ enclosure‑like effects in the form of community benefits or other methods of redistribution.^[353] It is true that such installations will reduce emissions more gradually and present increased challenges in scaling up both locally and across the country. But it is also more likely to be accepted by the public. Reducing contestation before it starts by helping people integrate industrial progress and local land use arguably seems like the more efficient path than fighting each siting process as a battle.

More broadly, the policy choice between securing energy through enclosure‑like processes and non‑enclosing energy also reflects a choice between using the tools of capitalism to address climate change—given that the birth of capitalism is attributed to English enclosure—versus rejecting those tools as incapable of addressing climate change.^[354] Given how enclosure theory reveals capitalism, energy development, and climate change as crises that go hand in hand, the path that prioritizes and exploits private capital seems unlikely to meaningfully address the climate crisis. Decarbonizing the electricity grid is indeed an important component of pursuing the socially critical outcome of climate mitigation.^[355] But it is just one piece of a broader puzzle necessitating that Global North residents learn to live in harmony with natural landscapes and within planetary boundaries.

Ultimately, scale—in human settlement patterns, volumes of production and consumption, and development, including in energy deployment—is the real enemy of sustainability in a more holistic sense.^[356] This is a point on which Garrett Hardin and Elinor Ostrom’s work seems to align. Smaller scales have less of a footprint on the natural world and make it easier to govern shared resources and infrastructures collectively. But embracing smaller scales, including non‑enclosing energy alternatives, likely requires rethinking typical conceptions of progress and the greater good. Scholars of rurality are sometimes assumed to be motivated by nostalgia for an imagined, more wholesome, and bygone way of life. But a more significant reason traditional rural livelihoods are a compelling object of study is that they are the examples of successful survival, and indeed commons governance, for thousands of years before industrialization.^[357]

Inclusive processes and respect for local land relations should not be considered inimical to progress on climate change. Energy law expert Shelley Welton has proposed, for instance, that Americans “appear to value the ability to choose the technologies and strategies that are used to respond to climate change rather than have them dictated to them.”^[358] This relationship—which also reflects the importance of local land relations—suggests that “simply giving Americans more control over their energy system . . . would likely bring climate progress.”^[359]

Implications for Property Relations

It is worth again emphasizing that this Article’s definition of enclosure is neutral as to the particular land uses that might give rise to enclosure‑like phenomena. The definition is meant to have applicability beyond the clean energy context and could help illuminate enclosure‑like processes in other contexts. For instance, the example of agricultural consolidation over the past several decades evinces another trend with features that align with the components detailed above. In that example, too, rural spatial openness and traditional practices of small‑scale farming were curtailed; large agribusinesses and institutions like the U.S Department of Agriculture facilitated the consolidation; consolidation was pursued in the name of the greater good by way of the need to “feed the world”; state right‑to‑farm laws proliferated as a means of formally adjusting property rights; and economic stratification arose as more profit accrued to ever‑larger farms.^[360] Further research would be helpful to investigate the relationships among property, enclosure, and overlapping questions relevant to a law‑and‑political‑economy framework.

The story of rural enclosure for energy and other land uses is in many ways part of the broader story of the commodification of American property. Enclosure is a precursor to commodification; its privatizing role helps turn property into less of a shared resource and more of an amenity exploited for private gain. This commodification plays a key role in not just modern environmental or rural crises but in crises of socioeconomic inequality throughout the country. Non­‑enclosing energy alternatives can and should therefore inform non‑enclosing land relations more broadly.

Our society must do more to treat property as a shared source of ways of life, means of survival, and cultural amenity. Although the road is long and challenging, initiatives in this direction do exist. Community‑ and state‑led initiatives in diverse geographies offer examples. In the rural context, collectives have emerged that “are striving to rebuild farmland commons arrangements through new community land trust models in the United States.”^[361] In the urban context, “land trusts, neighborhood‑managed parks, community‑supported agriculture and limited‑equity housing cooperatives” have arisen throughout the country.^[362] Finally, outright public ownership of public goods and infrastructure, while flawed and challenging in and of itself, offers an important alternative to trying to force private capital and private property to yield to socially desirable goals.^[363]

Conclusion

This Article has sought to revitalize the concept of enclosure with a view to understanding it as a geographically imbued form of class conflict over property. Enclosure movements entail economic, political, rhetorical, and legal components. Throughout history, enclosure movements have facilitated and exacerbated regional depopulation, economic stratification, and social dislocation—problems with which rural regions in the United States are already heavily burdened.

The Article has also sought to address the question of what the renewable energy transition portends for the urban‑rural divide. Deploying renewable energy generation projects quickly, at large scales, and on the cheapest and most open land is an appealing approach to decarbonization because this strategy seems like the most efficient and impactful pathway to climate mitigation. However, the push to facilitate this approach—and to minimize the voices of dissenters—is fraught with more ethical concern than might be immediately apparent, making it riskier than it may seem. Large‑scale acquisitions of property interests—potentially pursued for a variety of purposes—that disenfranchise local populations in the name of the greater good start to resemble forces of enclosure. When such a resemblance emerges, it is time to reexamine those dynamics to ask whether better alternatives exist. Concerning patterns in utility‑scale renewable energy deployment to date include the convergence of a crisis narrative, legal reforms to exclude locals’ input over land use, and political and economic dominance of state and private sector actors.

An approach guided by principles of re-commoning—a principle of anti‑enclosure, in other words—offers a preferable alternative, whether for renewable energy deployment or other forms of socially desirable development. Those alternatives are generally more aligned with a policy approach that relies less on the profit‑motivated private sector to provide fundamental necessities like electricity and more on alternative ownership and financing models. These alternatives also embrace a more holistic conception of land relations and environmental sustainability that do not purport to solve climate change with the very problems of resource privatization and commodification that are ultimately the root cause of the crisis.

 

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* Patrick D. Deem Professor of Law and Research Director, Center for Energy and Sustainable Development Law, West Virginia University College of Law. For helpful feedback on earlier iterations of this paper, I thank Alison Peck, Emily Prifogle, Jessica Shoemaker, Nick Stump, Hannah Wiseman, and Gavin Wright. I also thank participants at the 2025 Annual Meeting of the Rural Sociological Society in Salt Lake City, Utah, and the faculty scholarship workshop at West Virginia University College of Law. Finally, I am grateful to the editors at the University of Colorado Law Review for their thoughtful editorial work on this Article. All mistakes are my own.

1. Jessica A. Shoemaker, Re‑Placing Property, 91 U. Chi. L. Rev. 811, 815 (2024) (discussing how rural landownership in the United States is “increasingly concentrated and financialized”). ↑
2. See generally Jessica A. Shoemaker & James Fallows Tierney, Trading Acres, 135 Yale L.J. 829 (2026) (discussing financialization of farmland). See also Weekend Edition Sunday: AI Is Driving a Data Center Boom in Rural America. Locals Are Divided on the Benefits (NPR, Aug. 17, 2025) (discussing data center boom in rural regions); Karen Maguire et al., U.S. Dep’t of Agric., Econ. Rsch. Serv., No. ERR‑330, Utility‑Scale Solar and Wind Development in Rural Areas: Land Cover Change (2009–20) 1 (2024) (discussing how virtually all utility‑scale wind turbines and the majority of utility‑scale solar installations have been sited in rural areas). ↑
3. Shoemaker, supra note 1, at 816 (discussing how changing landownership patterns affect community character); Meredith Redlin & Brad Redlin, Amendment E, Rural Communities and the Family Farm, 49 S.D. L. Rev. 787, 792 (2004) (discussing connections among landownership concentration, capital concentration, industrialization, and negative impacts on rural communities). ↑
4. See Alexandra B. Klass & Hannah Wiseman, Repurposed Energy, 109 Minn. L. Rev. 219, 261–62 (2024) (discussing how the trend of placing “massive amounts of new industrial zero‑carbon infrastructure” in rural and post‑industrial communities “has met stiff opposition,” and how siting practices could be structured to bring more regional benefits); see also Julia Tilton, This Rural Community Fought One of Country’s Biggest Gas‑Powered Data Centers, and Won, Daily Yonder (June 17, 2025), https://dailyyonder.com/this-rural-community-fought-the-countrys-second-biggest-gas-powered-data-center-and-won/2025/06/17 [https://perma.cc/Q3YS-XGRY] (discussing increased demand for power for data centers and the “growing trend” of a “push to develop data centers in rural areas” around the country); cf. Kathiann M. Kowalski, Rural Ohioans Oppose Solar Farms, Right? Not So, Developer Finds, Ohio Cap. J. (Feb. 20, 2025, at 4:35 AM), https://ohiocapitaljournal.com/2025/02/20/rural-ohioans-oppose-solar-farms-right-not-so-developer-finds [https://perma.cc/FB3P-4RH2] (discussing mixed sentiments with regard to utility‑scale renewable energy projects throughout rural regions). ↑
5. Cf. Sheldon Bernard Lyke, Diversity as Commons, 88 Tul. L. Rev. 317, 325 (2013) (noting studies of commons and enclosure can be “a useful tool in analyzing social conflicts pertaining to the management and maintenance of resources” and how “shared resources . . . are subject to social dilemmas”). ↑
6. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, Law & Contemp. Probs., Winter/Spring 2003, at 33, 33–34; see also Robert Tennyson, From Unanimity to Proportionality: Assent Standards and the Parliamentary Enclosure Movement, 31 Law & Hist. Rev. 199 (2013) (defining enclosure as an exchange of common rights held in strips of land for cohesive plots). ↑
7. Cf. Ori Sharon, Fields of Dreams: An Economic Democracy Framework for Addressing NIMBYism, 49 Env’t L. Rep. 10264 (2019) (discussing commonness of local opposition to development of socially desirable facilities and “Not in My Back Yard (NIMBY)” opposition). ↑
8. See Boyle, supra note 6, at 34–35 (noting how enclosure movements offer “lessons about the way in which the state defines and enforces property rights to promote controversial social goals”). ↑
9. See Nicholas Blomley, The Territorialization of Property in Land: Space, Power and Practice, 7 Territory, Pol., Gov. 233, 435 (2019) (characterizing English enclosure as a crucial moment of reconceptualization of property); cf. Boyle, supra note 6, at 37 (characterizing English enclosure as an extension of the reach of property rights). ↑
10. Shoemaker & Tierney, supra note 2, at 829. This characterization is distinguishable from Polanyi’s “double movement” describing social movements responding to marketization trends because enclosure is a phenomenon inhering in property and arguably precedes marketization through processes of exclusion. See generally Filipe Nobre Faria, The Double Movement in Polanyi and Hayek: Towards the Continuation of Life, 1 Ethics, Pol. & Soc’y 329 (2018) (discussing Polanyi’s double movement theory). ↑
11. Cf. Sheila R. Foster, Vulnerability, Equality and Environmental Justice: The Potential and Limits of Law, in The Routledge Handbook of Environmental Justice 136 (Ryan Holifield et al. eds., 2017) (discussing environmental justice as a force of unequal distribution of environmental burdens and benefits across populations); Shannon R. Anderson & McKenzie F. Johnson, The Spatial and Scalar Politics of a Just Energy Transition in Illinois, 112 Pol. Geography 1, 2 (2024) (noting inadequacy of environmental justice to capture the dynamics of energy transition). ↑
12. See generally Blomley, supra note 9, at 242–45 (discussing connections among enclosure, property, and reinforcement of power dynamics). Although environmental justice challenges have clear relevance to property and vice versa, environmental justice tends to be discussed in terms of civil rights, environmental law, pollution, and land use as opposed to being addressed as a property‑related phenomenon. See Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 791 (1993) (discussing the environmental justice movement as an outgrowth of the environmental movement with increased focus on discriminatory and distributional phenomena); Vicki Been, What’s Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 Cornell L. Rev. 1001, 1005 (1993) (discussing siting of locally undesirable land uses as an environmental justice issue). Some commentary has recognized property’s importance to environmental justice. See Rebecca Bratspies, “Underburdened” Communities, 110 Calif. L. Rev. 1933, 1977–78 (2022) (discussing how technocratic urban planning processes give outsized influence to real property owners, in contrast to marginalized populations); Cary Martin Shelby, Racism as a Threat to Financial Stability, 118 Nw. U. L. Rev. 755, 793 (2023) (discussing how property practices such as redlining contribute to patterns of environmental injustice). ↑
13. See Blomley, supra note 9, at 243 (characterizing hedging processes in English enclosure as “an emergent form of class discipline”). ↑
14. See infra Part I. ↑
15. See generally Ann M. Eisenberg, Reviving Rural America: Toward Policies for Resilience (2024) (exploring contributors to rural depopulation and socioeconomic challenges and related public discourse exhibiting belief that these problems are intractable). ↑
16. See infra Part I. ↑
17. Cf. Alex Jeffrey et al., Rethinking Enclosure: Space, Subjectivity and the Commons, 44 Antipode 1247, 1247 (2012) (contrasting enclosure as “traditionally understood as the transformation of commonable lands into privately owned hands” with the newer understanding that it is “a key process of neoliberal globalization”). ↑
18. Cf. Jedediah Britton‑Purdy et al., Building a Law‑and‑Political‑Economy Framework: Beyond the Twentieth‑Century Synthesis, 129 Yale L.J. 1784, 1785, 1818–32 (2020) (describing a law‑and‑political‑economy framework as oriented toward critical questions of power, equality, and democracy in contrast to more mainstream analyses prioritizing efficiency, neutrality, and anti‑politicization). ↑
19. See infra Part III. ↑
20. New Frontiers of Land Control 8 (Nancy Lee Peluso & Christian Lund eds., 2013); Jennifer Baka, Making Space for Energy: Wasteland Development, Enclosures, and Energy Dispossessions, 49 Antipode 977, 978–79 (2017) (discussing environmental narratives about “wastelands” and energy modernization that are used to justify enclosure, manifested through national improvement schemes that conflict with local rural land use practices). ↑
21. Rural populations are, on average, less well off than suburban and urban populations and can experience unique challenges associated with rurality. Jane M. Mosley & Kathleen K. Miller, Spatial Variations in the Extent, Causes, and Consequences of Poverty: A Comparison of Rural and Urban Places, 13 Geo. J. on Poverty L. & Pol’y 169, 169 (2006); Eisenberg, supra note 15, at 32; cf. Shoemaker, supra note 1, at 888 (noting that there are “dials that property law can ‘turn’ to calibrate . . . property‑place relations”). ↑
22. Maguire et al., supra note 2, at 1 (“As of 2020, 99.8 percent of utility‑scale wind turbines and 74 percent of utility‑scale solar installations were in rural areas.”). “Utility‑scale” refers to energy generation projects that have “the capacity to produce one or more megawatt (‘MW’) of energy and typically requiring five to ten acres of land per MW of generating capacity.” Hannah J. Wiseman et al., Farming Solar on the Margins, 103 B.U. L. Rev. 525, 534 (2023) [hereinafter Wiseman et al., Farming Solar on the Margins]. These contrast with smaller‑scale, distributed generation installations, such as rooftop solar or smaller wind turbines. See Distributed Generation of Electricity and Its Environmental Impacts, EPA, https://www.epa.gov/energy/distributed-generation-electricity-and-its-environmental-impacts [https://perma.cc/LX6H-F6BA] (last updated Apr. 2, 2025). Academic literature and economic analyses often define “rural” according to the U.S. Census Bureau definition. This Article discusses the meaning of rural and rurality in Section I.B.1, infra. ↑
23. See Maguire et al., supra note 2, at 10. ↑
24. See, e.g., Mark Brush, This Is What It Sounds Like Inside Michigan’s Largest Wind Farm, Mich. Pub. (Nov. 26, 2023, at 10:44 AM), https://www.michiganpublic.org/environment-science/2013-11-26/this-is-what-it-sounds-like-inside-michigans-largest-wind-farm [https://perma.cc/B98S-R8WF] (discussing a wind farm “scattered over more than 30,000 acres”); see also Ari Natter, Trump Cancels Massive Idaho Wind Farm Amid Renewable Broadside, Seattle Times (Aug. 6, 2025, at 9:08 AM), https://www.seattletimes.com/business/trump-cancels-massive-idaho-wind-farm-amid-renewable-broadside [https://perma.cc/EHS4-ZHHV] (discussing cancellation of a more than 57,000‑acre project). ↑
25. Klass & Wiseman, supra note 4, at 226–27 (noting the 5.96 percent calculation includes indirect impacts of clean energy generation); Wiseman et al., Farming Solar on the Margins, supra note 22, at 530. ↑
26. See, e.g., Judith Lewis Mernit, The Fading Arizona Town of Gila Bend Bets Big on Solar, High Country News (June 4, 2012), https://www.hcn.org/issues/44-9/the-fading-arizona-town-of-gila-bend-bets-big-on-solar [https://perma.cc/62AT-5H7T] (describing lawsuits brought by local conservationists and Native American leaders against “national environmental leaders pushing Big Solar” in Arizona). ↑
27. See generally Ann M. Eisenberg, Extracting Clean Energy, 59 U.C. Davis L. Rev. 101 (2026) [hereinafter Eisenberg, Extracting Clean Energy] (summarizing reforms in Illinois, Maine, and New York). ↑
28. Cf. New Frontiers of Land Control, supra note 20, at 8 (discussing how “new forms of enclosure are being added to the repertoire” in light of changing modes of land contestation). This argument does not foreclose the similar argument, which scholars have explored previously, that fossil fuel developments have also shared traits with enclosure movements or effectuated enclosure. See Anton Vandevoorde, Commons in the Common Sense: Resisting Enclosures with Anti‑Fracking Activists in Lancashire, UK, Capitalism Nature Socialism, 2022, at 101, 101; Johanna Dahlin & Martin Fredriksson, Extracting the Commons, 31 Cultural Studies 253, 254–56 (2017). ↑
29. See Eisenberg, supra note 15, at 28–34 (discussing definitions of “rural”). ↑
30. See generally Lisa R. Pruitt, The Rural Lawscape: Space Tames Law Tames Space, in The Expanding Spaces of Law: A Timely Legal Geography 190 (Irus Braverman et al. eds., 2013) [hereinafter Pruitt, The Rural Lawscape] (discussing rural spatiality as a determining force in rural life and its relationship to law as well as the trend of academic under‑theorization of rural spatiality). Cf. Paul Cloke, Conceptualizing Rurality, in The Handbook of Rural Studies 18 (Paul Cloke et al. eds., 2006) (discussing “rural” as a contested concept often defined in opposition to cities). ↑
31. As to the current scale of renewable energy deployment, in 2020, “[t]he estimated footprint of solar farms was 336,000 acres; the footprint of wind farms was approximately 88,000 acres.” Maguire et al., supra note 2, at 10. However, decarbonizing the electricity sector “will require a significant expansion of renewable electricity generation,” which “will have local landscape effects in rural areas.” Id. at 27. If Biden administration policies were to continue, deployment would be “expected to significantly increase the pace of development of utility‑scale solar and wind projects.” Id.; see also Jessica Lovering et al., Land‑Use Intensity of Electricity Production and Tomorrow’s Energy Landscape, PLOS One, July 6, 2022, at 1, 11 (discussing how renewable energy sources like solar and wind “could considerably increase energy sprawl and loss of natural habitat”); cf. Damian Pitt et al., Re‑Evaluating the Land Use Impacts of Utility‑Scale Solar Energy Development in Virginia 21 (2024), https://www.energy.virginia.gov/renewable-energy/SolarPower.shtml#main [https://perma.cc/DB3R-CZ4Q] (total disturbed area for utility‑scale solar in Virginia increased 149 percent from 2021 to 2024). Deployment can, of course, be pursued in ways that attempt to mitigate these concerns. See Barbara Moran, Mass. Can Expand Solar Without Chopping So Much Forest, Report Says, WBUR (Oct. 2, 2023), https://www.wbur.org/news/2023/10/02/solar-power-farms-clear-cutting-forest [https://perma.cc/H8AR-932X] (reporting that practice of clear-cutting forests in Massachusetts for solar power not always necessary for project development). ↑
32. Cf. Pablo Jaramillo & Susana Carmona, Temporal Enclosures and the Social Production of Inescapable Futures for Coal Mining in Colombia, 130 Geoforum 11, 12–13 (2022) (discussing “concept of temporal enclosures” in which “mining companies restrict imaginable outcomes to those that favour them” and attempt to foreclose locals from imagining alternative possible futures, trying to ensure locals believe companies’ desired outcomes are necessary and inevitable). ↑
33. Cf. Sean M. Kammer, Reflections on the Importance of Critical Theory to Teaching Environmental Law, 70 S.D. L. Rev. 40, 41 (2025) (acknowledging differing levels of recognition and protection of land relations as dependent on what is recognized as “property”). ↑
34. See Public Utilities Act, 220 Ill. Comp. Stat. Ann. 5/1‑102 (2024) (providing that the State, rather than local governments, has authority to regulate utility‐scale wind and solar and thereby preempting local regulation); An Act Limiting Municipal Control of Large‐Scale Renewable Energy Projects,
    Me. Legis. Doc. 1975 (2024) (limiting municipal authority over certain large‑scale renewable energy sitings); An Act Promoting a Clean Energy Grid, Advancing Energy Equity, and Protecting Ratepayers,
    Mass. Act of 2024, ch. 239 (reducing municipal oversight and streamlining permitting for larger renewable energy projects); Accelerated Renewable Energy Growth and Community Benefit Act,
    N.Y. Laws 2020, ch. 58, pt. T (codified in part at N.Y. Exec. Law § 94‑c) (preempting local land use laws that delay or block utility‑scale renewable deployment, by creating a centralized siting review process); Cal. Pub. Res. Code § 25545(b) (authorizing developers of large renewable projects to seek approval path that supersedes local regulation); Md. Code Ann. Pub. Util. § 7‑207 (2024) (centralizing approval to the state level and providing that local zoning be given only “due consideration”); Troy A. Rule, Rural Solar Rights, 51 BYU L. Rev. 447, 452 (2025) (advocating limits on local government input and strengthened private property regimes for rural landowners to help facilitate solar deployment); Johanna Bozuwa & Dustin Mulvaney, Roosevelt Inst., A Progressive Take on Permitting Reform: Principles and Policies to Unleash a Faster, More Equitable Green Transition, 2–4 (2023), https://rooseveltinstitute.org/publications/a-progressive-take-on-permitting-reform [https://perma.cc/NV8H-SEYF] (discussing trend of climate advocates in permitting reform movement calling for “‘cutting red tape’ and ‘streamlining’” environmental review processes and calling instead for enhanced community engagement in public participation and decision‑making processes). ↑
35. See infra Part II. ↑
36. Bozuwa & Mulvaney, supra note 34, at 2–4; Dayna Nadine Scott & Adrian A. Smith, “Sacrifice Zones” in the Green Energy Economy: Toward an Environmental Justice Framework, 62 McGill L.J. 861, 867 (2017) (characterizing “green energy enthusiasm” as a “policy imperative” and “mandate” that not only justifies renewables deployment but also motivates removing “the kinds of procedural protections and democratic controls that have become standard in relation to more conventional energy projects”). ↑
37. See infra Part III. ↑
38. Scott & Smith, supra note 36, at 864–65 (discussing the challenge for environmental justice theory and advocacy that renewable energy is often framed as an important environmental benefit despite local opposition). ↑
39. See The Ezra Klein Show: Is Decarbonization Dead? (N.Y. Times, July 25, 2025), https://www.nytimes.com/2025/07/25/opinion/ezra-klein-podcast-jesse-jenkins-jane-flegal.html [https://perma.cc/RN2D-C6AB] (contemplating whether the “big, beautiful bill” and other measures pursued under the second Trump administration mean U.S. society is “courting catastrophe” instead of investing in clean energy technologies). ↑
40. The localized impacts of wind and solar farms are explored in more depth in Part II, infra. The Article accepts as an assumption that fossil fuel development tends to have more egregious local environmental and public health impacts than renewable energy development. See 7 Benefits of Renewable Energy Use, Union of Concerned Scientists, https://www.ucs.org/resources/benefits-renewable-energy-use [https://perma.cc/KBB4-C9WB] (last updated July 3, 2025). However, the discussion also takes seriously the fact that these installations “have their own environmental, health, and community consequences.” See Shelley Welton & Joel Eisen, Clean Energy Justice: Charting an Emerging Agenda, 43 Harv. Env’t L. Rev. 307, 357 (2019). ↑
41. Cf. Shelley Welton, Grasping for Energy Democracy, 116 Mich. L. Rev. 581, 644 (2018) (recognizing that “[w]hen we decide how to power our society, we are also making decisions about ownership structures, political power,” and landscapes, meaning “the pathways we choose for democratizing energy will ultimately help shape our country’s character for decades, if not centuries, to come”). ↑
42. See generally Rule, supra note 34; Bozuwa and Mulvaney, supra note 34. Cf. Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 12–14 (James E. Alt & Douglass C. North eds., 1990) (challenging private property as the core solution to collective action problems). ↑
43. See Inhwan Ko et al., Rural Backlash Could Impede Climate Ambition, Regul. Rev. (Jan. 22, 2024), https://www.theregreview.org/2024/01/22/ko-dolsak-prakash-rural-backlash-could-impede-climate-ambition [https://perma.cc/CY4Q-XXAR]; Anderson & Johnson, supra note 11, at 2 (noting that state‑level preemption of rural input on projects has “increased antipathy toward renewable projects”). ↑
44. The discussion in Part I, infra, outlines how enclosure movements have historically encountered resistance. Cf. Joseph Rand & Ben Hoen, Thirty Years of North American Wind Energy Acceptance Research: What Have We Learned?, 29 Energy Rsch. & Soc. Sci. 135, 138 (2017) (arguing that NIMBYism is not the correct lens through which to analyze resistance to renewable energy deployment due to the phenomenon’s deeper complexity). ↑
45. Steven Stoll, Ramp Hollow: The Ordeal of Appalachia 50 (2017) (arguing that English enclosure laid the foundation for further Western enclosures, including in Appalachia); Eric T. Freyfogle, The Tragedy of Fragmentation, 36 Valparaiso. U. L. Rev. 307, 328 (2002) (arguing that the privatization of American property has gone too far); Jeffrey et al., supra note 17, at 1258–59 (discussing “the deepening entrenchment of new forms of enclosure” and capitalism as a form of “endless enclosure”). ↑
46. See, e.g., Sarah Jessie Liez, The Power of Misinformation in Blocking Clean Energy Reform, FracTracker All. (Apr. 3, 2024), https://www.fractracker.org/2024/04/the-power-of-misinformation-in-blocking-clean-energy-reform [https://perma.cc/4MQH-4L3B] (attributing local resistance to a solar farm to misinformation). ↑
47. Cf. Alexandra B. Klass & Rebecca Wilton, Local Power, 75 Vand. L. Rev. 93, 159 (2022) (noting potential of municipal utilities to channel local preferences and benefits into community relationships with energy system); Wesley Gerard & Sukhmani Singh, Empowered Neighborhoods: Supporting Community Microgrids, Ariz. J. Env’t L. & Pol’y, Summer 2024, at 1, 13 (discussing community microgrids as a vehicle for participatory governance and local empowerment). ↑
48. See infra Part IV (discussing examples of non-enclosing energy alternatives). ↑
49. Cf. Jeffrey et al., supra note 17, at 1248 (arguing that investigating causes of enclosure can inform “enclosure’s other: strategies and practices of commoning that . . . assemble more inclusive, just and sustainable spaces”). ↑
50. Cf. Karl W. Hoesch et al., What to Expect When You’re Expecting Engagement: Delivering Procedural Justice in Large‑Scale Solar Energy Deployment, Energy Rsch. & Soc. Sci., Feb. 2025, at 1, 2 (discussing the concept of “rural burden,” the idea that “rural people and places are unfairly obligated to provide renewable energy to support increasing urban demand”). ↑
51. See discussion infra Part I. ↑
52. See Baka, supra note 20, at 981. ↑
53. Id. ↑
54. See infra Part II; Michaela Anang‑Hadjicostandi et al., Environmental Geography and Law: Toward A Synthesis, 99 Tul. L. Rev. 811, 824–825 (2025) (calling for legal scholarship and geography scholarship to recognize mutual efforts to explore abstraction of property and commodification and enclosure of the commons); see also Matthias Naumann & David Rudolph, Conceptualizing Rural Energy Transitions: Energizing Rural Studies, Ruralizing Energy Research, 73 J. Rural Stud. 97 (2020) (arguing that rural dimensions of energy transition remain underexplored and that questions of space, contestation, and emancipation are relevant). ↑
55. Eric T. Freyfogle, The Enclosure of America, at 1, 9 (Ill. Pub. L. & Legal Theory Rsch. Papers Ser., Research Paper No. 07‑10, 2007) (“[O]ne wonders why historians do not speak of a similar enclosure movement in the United States. The fact of enclosure is undeniable.”); see also Shawn Everett Kantor, Politics and Property Rights: The Closing of the Open Range in the Postbellum South 125 (1998) (investigating how “stock laws” and “fence laws” in Southern states protected landowners and closed off access to subsistence activities for nonlandowning rural populations, and assessing benefits and downsides for societal welfare). ↑
56. Rebecca Hersher & Alejandra Borunda, Climate Change Is Deadly. Exactly How Deadly?, NPR (June 10, 2024, at 6:53 AM), https://www.npr.org/2024/06/10/nx-s1-4842299/climate-disasters-death-tolls [https://perma.cc/5R3Y-S8SR]; Michael Burger et al., The Law and Science of Climate Change Attribution, 45 Colum. J. Env’t L. 57, 61 (2020) (discussing deaths from increases in extreme weather due to climate change). ↑
57. See Shalanda H. Baker, Anti‑Resilience: A Roadmap for Transformational Justice Within the Energy System, 54 Harv. C.R.‑C.L. L. Rev. 1, 11 (2019) (connecting fossil fuel development to institutionalization of racial hierarchies and capitalist exploitation that are the root causes of ecological degradation). ↑
58. Burger et al., supra note 56, at 61–62. ↑
59. See Baker, supra note 57, at 11; Nicholas F. Stump, Ecosocialism, Degrowth, and Global South Thought: Critical Legal Transformations, 49 Wm. & Mary Env’t L. & Pol’y Rev. 367, 368 (2025) (characterizing capitalism as the root cause of global ecological degradation); Jason Hickel, Less is More: How Degrowth Will Save the World 39–48 (2020) (discussing English enclosure as the birth of capitalism and capitalism’s relationship to environmental degradation and labor exploitation). ↑
60. See infra Part IV. ↑
61. See, e.g., Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315, 1391 (1993). ↑
62. See Carol Richards & Kristen Lyons, The New Corporate Enclosures: Plantation Forestry, Carbon Markets and the Limits of Financialised Solutions to the Climate Crisis, 56 Land Use Pol’y 209, 211 (2016) (discussing the well‑established “long history of enclosure as part of broader processes of capital accumulation, colonization and empire building”). ↑
63. Karrigan Börk & Sonya Ziaja, Amoral Water Markets?, 111 Geo. L.J. 1335, 1357 (2023). ↑
64. Charles J. Reid Jr., The Seventeenth‑Century Revolution in the English Land Law, 43 Clev. St. L. Rev. 221, 244 (1995) (establishing chronology for enclosure “has been a difficult and contentious task,” with some dating the start around 1000); Ellickson, supra note 61, at 1391 (suggesting enclosure came in waves starting in 1450); Jerry L. Anderson, Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks, 19 Geo. Int’l Env’t L. Rev. 375, 384 (2007) (noting that the pace of Parliamentary enclosure increased from 1700 to 1840); Robert P. Marzec, Energy Security: The Planetary Fulfillment of the Enclosure Movement, Radical Hist. Rev., Winter 2011, at 83, 83–84 (characterizing a 1967 Parliamentary bill resulting in eviction of a cottager as an act of enclosure). ↑
65. Börk & Ziaja, supra note 63, at 1357. ↑
66. Reid, supra note 64, at 232–43 (describing feudal arrangements of service, obligation, and land stewardship). ↑
67. These activities included grazing animals, “tak[ing] wood, turf, gorse bracken, and peat to use as fuel,” gathering fruits, nuts, herbs, and roots, and hunting deer or rabbit. Anderson, supra note 64, at 384–85. ↑
68. Ellickson, supra note 61, at 1391; see also John A. Lovett, Progressive Property in Action: The Land Reform (Scotland) Act 2003, 89 Neb. L. Rev. 739, 767 (2011) (describing English enclosure). ↑
69. Ellickson, supra note 61, at 1391; Stoll, supra note 45, at 55 (discussing legal processes of enclosure). See generally Tennyson, supra note 6, at 199 (discussing same). ↑
70. Hickel, supra note 59, at 46–47 (describing processes of enclosure and how it meant that “[f]or the first time in history, commoners were systematically denied access to the most basic resources necessary for survival” while elites thrived by way of land accumulation); Boyle, supra note 6, at 36 (noting questions as to whether enclosure increased agricultural production). ↑
71. Hickel, supra note 59, at 46–47. ↑
72. Reid, supra note 64, at 243 (describing “enclosure” as a “loaded term” in English historiography); cf. Ellickson, supra note 61, at 1392 (“The vexed events of the centuries‑long enclosure movement resist generalization.”). ↑
73. Tennyson, supra note 6, at 202 n.4 (providing a literature review of competing findings in legal history literature on the impact of enclosure on peasantry and small landowners and gains to substantial landowners). ↑
74. Boyle, supra note 6, at 35. ↑
75. Id. at 36 (discussing mass death in the sixteenth century that helped justify enclosure). ↑
76. Id. at 35. ↑
77. Marzec, supra note 64, at 84. ↑
78. Id. at 87; see also Ellickson, supra note 61, at 1331. ↑
79. See Boyle, supra note 6, at 36 (referring to how “everyone” other than economic historians “knows that a commons is by definition tragic,” meaning subject to tragic depletion, which leads to the conclusion that “the logic of enclosure is as true today as it was in the fifteenth century”); infra, Section I.B (discussing Garrett Hardin’s advocacy for enclosure based on the concept of tragedy of the commons). ↑
80. Boyle, supra note 6, at 35 (discussing an understanding of enclosure as “transferring inefficiently managed common land into the hands of a single owner,” allowing resources to “be put to their most efficient use” by facilitating “[m]ore grain . . . [to] be grown, more sheep raised,” more consumers to benefit, and “fewer people . . . [to] starve”). ↑
81. Id. at 36. ↑
82. Id. ↑
83. Id. at 35. ↑
84. Reid, supra note 64, at 244. ↑
85. Marzec, supra note 64, at 84. ↑
86. Boyle, supra note 6, at 34; see also Alex Vasudevan et al., Spaces of Enclosure, 39 Geoforum 1641, 1641 (2008) (describing the experience of English enclosure as “at once aesthetic and political”). ↑
87. Boyle, supra note 6, at 35. ↑
88. Id. at 35. ↑
89. Id. at 34; Hickel, supra note 59, at 46 (discussing peasant uprisings in response to enclosure that encountered violent suppression). ↑
90. Hickel, supra note 59, at 39–41, 46–48 (discussing foundations of private property and the economic system of capitalism in English enclosure); Amy Kapczynski, The Law of Informational Capitalism, 129 Yale L.J. 1460, 1481 (2020) (tracing origins of capitalism to English enclosure). ↑
91. Hickel, supra note 59, at 47–48 (“With subsistence economies destroyed and commons fenced off, people had no choice but to sell their labour for wages . . . simply in order to survive.”). ↑
92. See generally Stoll, supra note 45 (discussing the history of Appalachian dispossession through the lens of enclosure). ↑
93. Id. at 50. ↑
94. Id. at 28–29. ↑
95. Id. at 21, 50. ↑
96. Id. at 21. ↑
97. See, e.g., id. at 23–24 (discussing a coal industry leader’s view that “a transcendent force of progress” meant that the simpler, “natural” men and women of the Appalachian mountains needed to be dispossessed of the land). ↑
98. See Robert L. Glicksman, Coal‑Fired Power Plants, Greenhouse Gases, and State Statutory Substantial Endangerment Provisions: Climate Change Comes to Kansas, 56 U. Kan. L. Rev. 517, 524–29 (2008) (discussing coal combustion as a major contributor of greenhouse gas emissions). See generally Hickel, supra note 59 (discussing the modern crisis of climate change as resulting from capitalism and intensive natural resource exploitation, which in turn resulted from English enclosure). ↑
99. Boyle, supra note 6, at 35. ↑
100. Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time 36 (1944); cf. Karl Marx, Capital: A Critique of Political Economy 506 (Frederick Engels ed., Samuel Moore & Edward Aveling trans., 1867) (“[T]he historical movement which changes the producers into wage‑workers, appears on the one hand, as their emancipation from serfdom and from the fetters of the guilds, and this side alone exists for our bourgeois historians. But, on the other hand, these new freedmen became sellers of themselves only after they had been robbed of all their own means of production, and all the guarantees of existence offered by the old feudal arrangements.”). ↑
101. Polanyi, supra note 100, at 36 (describing enclosure as embracing “the essence of purely economic progress” which involves “achiev[ing] improvement at the price of social dislocation”). ↑
102. Lyke, supra note 5, at 338–39. ↑
103. See generally Cambridge University Press, The Cambridge Handbook of Commons Research Innovations (Sheila R. Foster & Chrystie F. Swiney eds. 2022) [hereinafter Commons Research Innovations] (discussing examples of “commons” studies). ↑
104. See generally Boyle, supra note 6 (discussing intellectual property as a second enclosure movement); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999). ↑
105. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243 (1968); see also Freyfogle, supra note 45 at 311 (describing Hardin’s theory and noting the strong criticisms of it when it came out from scholars of common‑property arrangements who “knew full well” that such arrangements could “sometimes work just fine”). ↑
106. Freyfogle, supra note 45, at 312; see also Carole Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 711–14 (1986) (connecting the concept of tragedy of the commons with neoclassical arguments that private property is the best model of land relations for social welfare). ↑
107. Commons Research Innovations, supra note 103, at 1. ↑
108. Elinor Ostrom et al., Revisiting the Commons: Local Lessons, Global Challenges, 284 Science 278, 278 (1999). ↑
109. See generally Ostrom, supra note 42 (exploring how neither states nor privatized markets have been successful in governing shared resources, and using institutional empirical analysis to illuminate conditions for successful and unsuccessful common‑pool governance, including successful stories of voluntary self‑organization). ↑
110. Commons Research Innovations, supra note 103, at 2. ↑
111. See Lyke, supra note 5, at 325–29 (2013) (discussing definitions of common pool resources). ↑
112. Commons Research Innovations, supra note 103, at 2. ↑
113. Ostrom et al., supra note 108, at 278. ↑
114. See generally Ann M. Eisenberg, Rural America as a Commons, 57 U. Rich. L. Rev. 769 (2023) [hereinafter Eisenberg, Rural America as a Commons] (discussing the relevance of commons theory to rural resources). ↑
115. Id. at 774. ↑
116. U.S. Census Bureau, Defining “Rural” Areas 2 (2020), https://www.census.gov/content/dam/Census/library/publications/2020/acs/acs_rural_handbook_2020_ch01.pdf [https://perma.cc/6C74-Y6W6] (noting that rural areas are considered to comprise approximately 97 percent of land mass of United States). ↑
117. Eisenberg, Rural America as a Commons, supra note 114, at 774. ↑
118. See generally Ann M. Eisenberg, Rural Disaffection and the Regulatory State, 126 Penn St. L. Rev. 739 (2022) (discussing rural perceptions that regulations can be an impediment to livelihoods and arguing that actual conditions align with those perceptions and should be taken more seriously). ↑
119. Eisenberg, Rural America as a Commons, supra note 114, at 774. ↑
120. See generally Ann M. Eisenberg, Distributive Justice and Rural America, 61 B.C. L. Rev. 189 (2020) [hereinafter Eisenberg, Distributive Justice and Rural America] (investigating the decline of traditional livelihoods that once helped keep rural communities afloat). ↑
121. See generally Eisenberg, supra note 15 (investigating relationships among natural resource extraction, exploitation of rural people and places, and rural socioeconomic distress). ↑
122. Id. at 118–29 (discussing impacts of deregulation on rural regions). ↑
123. See generally id. (addressing legal, economic, and political causes and consequences of rural depopulation). ↑
124. Boyle, supra note 6, at 35 (quoting Polanyi, supra note 100, at 35). Compare with Ann M. Eisenberg, Rural Blight, 12 Harv. L. Rev. 187 (2018) (discussing the proliferation of vacant properties in rural regions due to depopulation), and Eisenberg, Distributive Justice and Rural America, supra note 120 (arguing that national and state economic policies during the late twentieth century undermined traditional rural land‑based livelihoods, contributing to depopulation). ↑
125. Cf. Reid, supra note 64, at 253 (“Excitement was particularly aroused [at the end of the fifteenth century] over rural depopulation. It was perceived that villages that had been steadily inhabited for several hundred years were being emptied of their people. The conclusion was quickly drawn that the enclosures of wealthier landholders . . . were responsible.”). ↑
126. Cf. Vasudevan et al., supra note 86, at 1642 (quoting Retort Collective, Afflicted Powers: Capital and Spectacle in a New Age of War 193 (2005) (suggesting that “at the heart of capitalist modernity . . . has been a process of endless enclosure”). ↑
127. See generally Shoemaker & Tierney, supra note 2 (arguing that widespread capture of farmland by financial investors poses distinct threats to food systems and rural residents); Shoemaker, supra note 1 (discussing changed ownership patterns of rural property and detachment of ownership from possession); Jessica A. Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695 (2021) (arguing that property law plays a fundamental, problematic role in rural racial stratification and depopulation). ↑
128. Shoemaker, supra note 1, at 815. ↑
129. Id. ↑
130. Cf. Richards & Lyons, supra note 62, at 209 (“Land acquisition through processes of financialisation is directly tied to the enclosure of landscapes.”). ↑
131. Commons Research Innovations, supra note 103, at 2. ↑
132. See, e.g., Lyke, supra note 5. ↑
133. Cf. Jessica A. Shoemaker, Transforming Property: Reclaiming Indigenous Land Tenures, 107 Calif. L. Rev. 1531, 1582 (2019) (listing English enclosure as an example of “rare, cataclysmic transitions from commons or other forms of collective ownership to privatized property, or vice versa,” which receives much of the attention of property law scholarship); Reid, supra note 64, at, 243 (1995) (discussing Joan Thirsk’s definition of enclosure of land as the process of extinguishing common rights over it, usually through hedges or fences); Benkler, supra note 104, at 363 (defining enclosure as an expansion of property rights). ↑
134. Vasudevan et al., supra note 86, at 1641. ↑
135. See, e.g., id. at 1642 (discussing various ways to conceive of enclosure and seeking to reinterpret it). ↑
136. Shoemaker, Transforming Property, supra note 133, at 1582; Sherally Munshi, Dispossession: An American Property Law Tradition, 110 Geo. L.J. 1021, 1032 (2022) (including within the concept of enclosure “privatization of natural resources, the expansion of extractive industries, and the innovation of novel financial instruments to facilitate transfers of value and wealth, such as subprime lending and foreclosure”). ↑
137. Gail Osherenko, New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust, 21 J. Env’t L. & Litig. 317, 329 (2006). ↑
138. Geger Riyanto, Indigeneity as a Sphere of Differences: State Enclosure and Counter‑Enclosure of Rural Spaces in Indonesia, 1 Anthropological Theory 440, 441 (2025). ↑
139. Midnight Notes Collective, The New Enclosures, Commoner, Sep. 2001, at 1; see also Richards & Lyons, supra note 62, at 209 (exploring “[e]nclosure of distant lands by financial actors, whether for carbon sequestration, conservation, development or ‘food security’ purposes, [which] pose adverse livelihood impacts at the local level, despite claims that investment brings about greater social and economic development”). ↑
140. Hickel, supra note 59, at 46–47 (discussing ratcheting up of privatization of property as a precursor to property’s use as a commodity by the wealthy). ↑
141. Anderson, supra note 64, at 384–85 (describing peasants’ rights). ↑
142. Shoemaker, supra note 133, at 1583. ↑
143. Vasudevan et al., supra note 86, at 1642; see also Jaramillo & Carmona, supra note 32, at 13 (discussing the concept of enclosure); Richards & Lyons, supra note 62, at 209–16 (noting that technologies of governance, key players, contemporary approaches, diverse sectors, and property regimes all shape land enclosures). ↑
144. Richards & Lyons, supra note 62, at 211 (“The long history of enclosure as part of broader processes of capital accumulation, colonization and empire building is well documented.”); Jeffrey et al., supra note 17, at 1247 (framing enclosure as “key process of neoliberal globalization”); see also Shoemaker, supra note 133, at 1584 (noting malleability and nuance of property reforms that reveal how “property is constantly changing, experimenting, and evolving”). ↑
145. Jedediah Purdy, A Freedom‑Promoting Approach to Property: A Renewed Tradition for New Debates, 72 U. Chi. L. Rev. 1237, 1238 (2005) (noting that the evolution of property is a dynamic practice). ↑
146. Britton‑Purdy et al., supra note 18, at 1790–94 (noting the tendency of legal subfields to emphasize the importance of economic efficiency and arguing that law‑and‑political‑economy framework can help orient analyses toward pressing questions of distribution and power). ↑
147. Jon S. Cohen & Martin L. Weitzman, A Marxian Model of Enclosures, 1 J. Dev. Econ. 287, 288–9 (1975). ↑
148. See generally Boyle, supra note 6 (discussing intellectual property privatization as the “second enclosure movement”); Richards & Lyons, supra note 62 (discussing enclosure through land acquisition as a political and economic phenomenon); Cohen & Weitzman, supra note 147 (departing from traditional methods of analysis in economic history to investigate enclosure). ↑
149. Cf. Jessica A. Shoemaker, Land Reform in the Fifth World, 52 Sw. L. Rev. 239, 242 (2023) (noting the importance of de facto patterns of land use and management in addition to de jure rights in shaping universally present expectations people have “about their existing land relationships that are sticky and hard to change”); see also Neil D. Hamilton, Feeding Our Green Future: Legal Responsibilities and Sustainable Agricultural Land Tenure, 13 Drake J. Agric. L. 377, 382 (2008) (noting that land tenure entails questions of ownership and control, but also traditional social arrangements and economic distribution of power in society). ↑
150. Boyle, supra note 6, at 39. ↑
151. The argument that something that is not formally considered property is still relevant to considerations of how property relations might encounter skepticism. This is perhaps because of “how strongly the idea of private property is hard‑wired into the fabric of American political and economic democracy.” Hamilton, supra note 149, at 387. I take this skepticism as a sign that “anything that seems to either question the sanctity of individually owned and controlled property or hint at new ways to consider its use or methods to allocate, reform, or restrict property rights is greeted with suspicion.” Id. ↑
152. Jeffrey et al., supra note 17, at 1251–52 (linking enclosure to the phenomenon of states and the wealthy preferring to invest in wealthy rather than low‑income populations, and the tendency of states to invest in particular populations over others). ↑
153. Anderson, supra note 64, at 386. ↑
154. Reid, supra note 64, at 260 (quoting Karl Marx describing the relationship between powerful landlords and legal system to achieve enclosure). ↑
155. Boyle, supra note 6, at 37. ↑
156. See Richards & Lyons, supra note 62, at 211 (noting that early enclosures were based upon characterizing landscapes “as empty or under‑utilised; a form of terra nullius that rendered prior land use, and the people that inhabited such landscapes, invisible”); Ben White et al., The New Enclosures: Critical Perspectives on Corporate Land Deals, 39 J. of Peasant Stud. 619, 631–32 (2012) (discussing “crisis narratives” that justify large corporate land investments framed around “impending catastrophe” and an impetus to better use less‑developed land). ↑
157. See Reid, supra note 64, at 257–58 (explaining that although anti‑enclosure sentiment played a central role in British politics in sixteenth century, later, the “rhetoric of improvement” and appeals to the benefit of the “entire realm” led to the pro‑enclosure movement’s “intellectual respectability” and ultimate domination). ↑
158. Anderson, supra note 64, at 384. ↑
159. Id. (quoting J.M. Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820, at 5 (1993)). ↑
160. Boyle, supra note 6, at 37. ↑
161. Richards & Lyons, supra note 62, at 211 (describing the process of cultural erasure entailed in enclosure); cf. Boyle, supra note 6, at 35 (noting the tendency to dismiss criticisms of enclosure as “sentimental bunk” that overlooks enclosure’s advantages). ↑
162. Richards & Lyons, supra note 62, at 211 (characterizing English enclosure as the “destruction of traditional common rights to land” in favor of newly recognized owners and other enclosures as undermining “complex customary, freehold and land tenure systems, thereby shaping land access, use and decision‑making rights”). ↑
163. Id. (discussing how enclosures are “enacted via the introduction of new legal and socio‑cultural boundaries, with outcomes that redefined land access and user rights in ways that constrained prior use”). ↑
164. Tennyson, supra note 6, at 205. ↑
165. Id. ↑
166. Reid, supra note 64, at 245. ↑
167. Anderson, supra note 64, at 387. ↑
168. See generally Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 Berkeley Tech. L.J. 1031, 1031 (2005) (noting that, while it is a complex issue, aggressive intellectual property protections in the medical sector factor into inaccessibility of life‑saving medications for the world’s poor). ↑
169. Moore v. Regents of Univ. of California, 793 P.2d 479, 492–93 (1990) (holding Moore had no proprietary interest in his cells or in the products developed from them). ↑
170. See generally Shoemaker & Tierney supra note 2 (discussing financialization of farmland); Weekend Edition Sunday, supra note 2 (discussing data center boom in rural regions); Maguire et al., supra note 2 (discussing proliferation of utility‑scale wind turbines and solar installations in rural areas); Richards & Lyons, supra note 62 (discussing land acquisition for carbon sequestration). ↑
171. Some of the research and discussion in this Part is paraphrased from this Article’s companion article. See Eisenberg, Extracting Clean Energy, supra note 27. ↑
172. Teresa B. Clemmer, Staving Off the Climate Crisis: The Sectoral Approach Under the Clean Air Act, 40 Env’t L. 1125, 1129–32 (2010). ↑
173. Daniel E. Walters, Tomorrow’s Climate Law, Today, 58 U.C. Davis L. Rev. 2121, 2132 (2025) (discussing “growing consensus that the ship has sailed on comprehensive, binding emissions controls at the national or international level”). ↑
174. See, e.g., West Virginia v. EPA, 597 U.S. 697 (2022) (vacating the 2015 EPA Clean Power Plan geared toward reducing emissions from coal‑fired power plants); Walters, supra note 173, at 2139 (describing climate policy’s “politics problem”). ↑
175. Renewable & Clean Energy Standards, N.C. Clean Energy Tech. Ctr.:  Database of State Incentives for Renewables & Efficiency (infographic 2023), https://ncsolarcen-prod.s3.amazonaws.com/wp-content/uploads/2023/12/RPS-CES-Dec2023-1.pdf [https://perma.cc/5YUH-MZMU]; Alison Gocke, Public Utility’s Potential, 133 Yale L.J. 2773, 2782 (2024); Garrick B. Pursley & Hannah J. Wiseman, Local Energy, 60 Emory L.J. 877, 879 (2011). ↑
176. Ryan Thomas Trahan, Counting Carbon: Forward‑Looking Analysis of Decarbonization, 27 Hastings Env’t L.J. 110, 113 & n.6 (2021). ↑
177. Klass & Wiseman, supra note 4, at 245–46 (noting that through, among other measures, a “rapid increase in solar and wind generation,” “the next three decades must witness a massive transformation of the entire U.S. energy system toward close to 100 percent zero‑carbon resources, in addition to the necessary expansion of negative‑carbon technologies in the form of carbon removal”); Matthew Eisenson, Overcoming Unreasonably Burdensome Restrictions on the Use of Farmland for Solar Generation, 75 Case W. Res. L. Rev. 117, 120–21 (2024) (discussing the necessary expansion of solar capacity to achieve net‑zero energy in the United States); see Uma Outka, Renewable Energy Siting for the Critical Decade, 69 Kan. L. Rsrv. 857, 859 (2021) (noting that if carbon emissions do not decline 45 percent by 2030, catastrophic effects of climate change will include threats to human health, food and water security, economic stability, biodiversity, and species extinction). ↑
178. Wiseman et al., Farming Solar on the Margins, supra note 22, at 534 (defining “utility‑scale” energy generation); Gerard & Singh, supra note 47, at 7–12 (discussing microgrids, distributed energy resources such as rooftop solar, and advantages of decentralized energy systems); Welton & Eisen, supra note 40, at 360– 61 (discussing the importance of scale of energy projects to community justice concerns). ↑
179. Wiseman et al., Farming Solar on the Margins, supra note 22, at 534. ↑
180. Gerard & Singh, supra note 47, at 13. ↑
181. Ryan Thomas Trahan, Regulating Toward (In)security in the U.S. Electricity System, 12 Tex. J. Oil, Gas & Energy L. 1, 21–22 (2017). “A microgrid is a group of interconnected loads and distributed energy resources within clearly defined electrical boundaries that acts as a single controllable entity with respect to the grid. A microgrid can operate in either grid‑connected or in island mode, including entirely off‑grid applications.” Grid Deployment Off., U.S. Dep’t of Energy, Microgrid Overview 1 (2024), https://www.energy.gov/sites/default/files/2024‑02/46060_doe_gdo_microgrid_overview_fact_sheet_release_508.pdf [https://perma.cc/EN4G-UKKQ]. Community energy sharing is “an emerging procurement model” that involves customers subscribing to a locally owned generation installation. Shared Renewables, EPA, https://www.epa.gov/green-power-markets/shared-renewables [https://perma.cc/JFK3-ATJ4] (last updated Mar. 21, 2025). Community energy models tend to be smaller than utility‑scale ones. Kyle Wehnes, Community Solar vs. Utility‑Scale Solar: What’s the Difference?, New Energy Equity: Insights Blog (Feb. 8, 2024), https://www.newenergyequity.com/blog/community-solar-vs-utility-scale-solar [https://perma.cc/D7Q2-8GV7]. ↑
182. Eisenson, supra note 177, at 133–35 (critiquing restrictions on utility‑scale solar and noting that it “can be deployed in less time with less money” compared to alternatives); Shannon M. Roesler, Clean Energy Infrastructure and Private Property: Lessons from the Midwest, 110 Iowa L. Rev. 2101, 2103–04 (2025) (discussing projection that “utility‑scale wind and solar must make up sixty percent to eighty percent of our energy mix to achieve the Biden Administration’s goal of carbon‑free electricity by 2035”). ↑
183. Klass & Wiseman, supra note 4, at 249; Leon Clarke et al., Chapter 6: Energy Systems, in Climate Change 2022 Mitigation of Climate Change: Working Grow III Contribution to the Assessment Report of the Intergovernmental Panel on Climate Change 613, 619 (2022), https://www.ipcc.ch/report/ar6/wg3/chapter/chapter-6 [https://perma.cc/YC7X-UUNF]. ↑
184. Inflation Reduction Act of 2022, Pub. L. No. 117‑169, § 70007, 136 Stat. 1818, 2087; Daniel A. Farber, Turning Point: Green Industrial Policy and the Future of U.S. Climate Action, 11 Tex. A&M L. Rev. 303, 304 (2024); Lori Bird & Joseph Womble, State of the US Clean Energy Transition: Recent Progress, and What Comes Next, World Res. Inst. (Feb. 7, 2024), https://files.wri.org/d8/s3fs-public/2025-02/growth-renewable-energy-article-february-2024.pdf [https://perma.cc/G6E8-X9ZM]. ↑
185. Christiana Ochoa et al., Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help, 107 Minn. L. Rev. 1055, 1067–69 (2023). ↑
186. Cf. The Ezra Klein Show, supra note 39; Mia Beams & Akkshath Subrahmanian, Congress’s “One Big Beautiful Bill” Will Shrink Renewable Energy Investments—Yet Some Technologies Are Preserved, Council on Foreign Rel. (Aug. 4, 2025, at 2:46 PM), https://www.cfr.org/article/congresss-one-big-beautiful-bill-will-shrink-renewable-energy-investments-yet-some [https://perma.cc/4A32-L8W2]. ↑
187. Katherine Antonio, Solar and Wind to Lead Growth of U.S. Power Generation for the Next Two Years, U.S. Energy Info. Admin. (Jan. 16, 2024), https://www.eia.gov/todayinenergy/detail.php?id=61242 [https://perma.cc/TUZ4-QSNM]. ↑
188. Klass & Wiseman, supra note 4, at 261–62. ↑
189. Id. at 226; Rule, supra note 34, at 457 (discussing siting considerations of solar farms). ↑
190. Klass & Wiseman, supra note 4, at 226. While this figure may sound daunting, the National Renewable Energy Laboratory notes that “the total amount of land needed by 2035 to achieve our clean power goals with wind, solar and long‑distance transmission lines (19,700 sq. mi) would be . . . equivalent to the land area currently occupied by railroads (18,500 sq. mi) . . . [and] only slightly more than the historically disturbed land area for coal mining (13,100 sq. mi).” Steve Clemmer, How Much Land Would it Require to Get Most of Our Electricity from Wind and Solar?, Equation (Feb. 22, 2023, at 4:48 PM), https://blog.ucs.org/steve-clemmer/how-much-land-would-it-require-to-get-most-of-our-electricity-from-wind-and-solar [https://perma.cc/QP8D-H5UJ]. ↑
191. Eric O’Shaughnessy et al., Drivers and Energy Justice Implications of Renewable Energy Project Siting in the United States, 25 J. Env’t Pol’y & Plan 258, 259–60 (2023); Dan Gearino, Texas Leads U.S. Renewable Energy Generation by a Country Mile, Inside Climate News (Mar. 6, 2025), https://insideclimatenews.org/news/06032025/inside-clean-energy-texas-leads-renewable-generation [https://perma.cc/MZX8-WEJA] (reporting that Texas generated the most wind power of all states in 2024, with California ranking second and Iowa ranking third); Felicity Bradstock, The Three States Driving America’s Solar Boom, Oilprice (Jun. 8, 2025), https://oilprice.com/Energy/Energy-General/The-Three-States-Driving-Americas-Solar-Boom.html [https://perma.cc/EEH7-Z9TG] (reporting that California, Texas, and Florida produce the most solar energy generation, followed by Arizona and North Carolina). ↑
192. Klass & Wiseman, supra note 4, at 227, 262. ↑
193. Peter Coy, High‑Voltage Power Lines Are Ugly, and the U.S. Needs More, Bloomberg (Nov. 30, 2020, at 7:21 PM), https://www.bloomberg.com/news/articles/2020-11-30/high-voltage-power-lines-are-ugly-and-the-u-s-needs-more [https://archive.ph/6eGv0]. ↑
194. Alexandra B. Klass, Expanding the U.S. Electric Transmission and Distribution Grid to Meet Deep Decarbonization Goals, 47 Env’t L. Rep. 10749, 10764 (2017). ↑
195. See generally Danielle Stokes, Renewable Energy Federalism, 106 Minn. L. Rev. 1757 (2022) (discussing conflicts among federal, state, and local regulation in renewable energy deployment). ↑
196. Outka, supra note 177, at 858, 862. ↑
197. John R. Nolon, Death of Dillon’s Rule: Local Autonomy to Control Land Use, 36 J. Land Use & Env’t L. 7, 11–12 (2020) (observing that municipalities in Home Rule states have default powers to act over local affairs); Jesse J. Richardson et al., Is Home Rule the Answer? Clarifying the Influence of Dillon’s Rule on Growth Management, Brookings Inst., 41 (2003), https://www.brookings.edu/wp-content/uploads/2016/06/dillonsrule.pdf [https://perma.cc/JG4X-FL5W] (providing fifty‑state summary of local authority; noting that examples of Home Rule states include Alaska, Iowa, Massachusetts, New Jersey, and South Carolina). ↑
198. Nolon, supra note 197, at 8, 22–23 (remarking that Dillon’s Rule states treat municipalities not as sovereign entities, “but merely instrumentalities of states” whose legal powers are narrowly construed); Richardson et al., supra note 197 (noting that examples of Dillon’s Rule states include Arizona, Nevada, Texas, and Virginia). ↑
199. Eisenberg, Extracting Clean Energy, supra note 27, at 120–21. ↑
200. Klass & Wiseman, supra note 4, at 228, 238–39 (discussing causes of local opposition). ↑
201. Outka, supra note 177, at 864–65; Eisenson, supra note 177, at 119–22 (2024) (expressing concern about rural opposition to renewable energy and articulating strategies to overcome the opposition). ↑
202. Hannah J. Wiseman et al., Renegotiating the Energy Transition, 97 U. Colo. L. Rev. 635, 639–40 (2026). ↑
203. Id. at 676–81. ↑
204. Sarah Mills, Wind Energy and Rural Community Sustainability, in Handbook of Sustainability and Social Science Research 215, 217 (Walter Leal Filho et al. eds., 2018) (noting that wind developers rarely owned the land they build on and instead enter long‑term leases with landowners). ↑
205. Kaitlyn Spangler et al., Just Energy Imaginaries? Examining Realities of Solar Development on Pennsylvania’s Farmland, Energy Rsch. & Soc. Sci., Feb. 2024, at 1, 2 (“[P]rior research [on solar siting] has identified concerns over lack of transparency on solar leasing processes, inequitable distributions of costs and benefits, and opposition to changing aesthetic, ecological, and sociocultural values of rural landscapes.”). ↑
206. Eisenberg, Extracting Clean Energy, supra note 27, at 122. ↑
207. Susan Lorde Martin, Wind Farms and Nimbys: Generating Conflict, Reducing Litigation, 20 Fordham Env’t L. Rev. 427, 427 (2017) (using NIMBY pejoratively to refer to opponents of siting projects that may have negative local impacts but benefit the broader community); Robert Glennon & Andrew M. Reeves, Solar Energy’s Cloudy Future, 1 Ariz. J. Env’t L. & Pol’y 91, 120 (2010) (discussing energy developers’ frustrations with resistance and characterization of NIMBYism). ↑
208. Joseph Rand & Ben Hoen, Thirty Years of North American Wind Energy Acceptance Research: What Have We Learned?, 29 Energy Rsch. & Soc. Sci. 135, 143 (2017). ↑
209. See generally Maguire et al., supra note 2 (discussing land cover change from wind and solar development and bases for local community resistance); Zachary Goldberg et al., Understanding and Addressing the Impact of Solar Development on Pennsylvania Farmland, 3 Rural Pol’y 162 (2024) (investigating economic, social, and physical land‑based impacts of utility‑scale solar development on farm communities in Pennsylvania); Alexandra Potamianos, How to Blow Up a Solar Farm: Local Opposition to Renewable Energy Projects, 54 Env’t L. Rep. 10945 (2024) (discussing local opposition to renewable energy projects in New York); Ochoa et al., supra note 185 (discussing local views of wind farm siting in the Midwest); Roberta S. Nilson & Richard C. Stedman, Reacting to the Rural Burden: Understanding Opposition to Utility‑Scale Solar Development in Upstate New York, 88 Rural Soc. 578 (2023) (discussing opposition to utility‑scale solar in upstate New York); O’Shaughnessy et al., supra note 191 (exploring energy justice implications of wind and solar siting patterns in rural areas and areas with lower incomes); Roberta Sue Ryann Nilson, Utility‑Scale Solar in New York State: An Exploration of Public Response, Policy, and Justice (Aug. 2022) (Ph.D. dissertation, Cornell University), PQDT 2726960654 (investigating public attitudes toward utility‑scale solar in upstate New York); Jessica Crawford et al., Rallying the Anti‑Crowd: Organized Opposition, Democratic Deficit, and a Potential Social Gap in Large‑Scale Solar Energy, Energy Rsch. & Soc. Sci., Aug. 2022, at 1 (investigating attitudes towards large‑scale solar in Michigan); Lawrence Susskind et al., Sources of Opposition to Renewable Energy Projects in the United States, Energy Pol’y, Jun. 2022 (investigating key sources of opposition for utility‑scale wind, solar, and geothermal projects that were delayed or blocked between 2008 and 2021); Danielle Jacques & Alessandra Del Brocco, “This is Where I Belong”: Gender, Land, and Loss in Central Maine’s Transition from Dairy to Solar, Graduate J. Food Stud.: Seeding Alternatives, 2022, https://gradfoodstudies.org/2024/06/25/central-maines-transition-from-dairy-to-solar [https://perma.cc/XQS3-XQ58] (investigating gendered nature of farmland loss from solar expansion in dairy‑producer region of Maine); Stephanie Buechler & Karina Guadalupe Martínez‑Molina, Energy Justice, Renewable Energy, and the Rural‑Urban Divide: Insights from the Southwest U.S., Energy & Climate Change, Dec. 2021, at 1 (investigating urban and rural dynamics surrounding large‑scale solar‑wind energy park in Arizona); J. Tom Mueller & Matthew M. Brooks, Burdened by Renewable Energy? A Multi‑Scalar Analysis of Distributional Justice and Wind Energy in the United States, Energy Rsch. & Soc. Sci., May 2020, at 1 (investigating energy justice in wind energy development); Z. Bednarikova et al., An Examination of the Community Level Dynamics Related to the Introduction of Wind Energy in Indiana (2020), https://extension.purdue.edu/cdext/thematic-areas/community-planning/collaborative-projects/_docs/wind-energy/wind-energy_final-report.pdf [https://perma.cc/B92X-Z4AF] (examining wind‑energy sector in Indiana); Jeffrey B. Jacquet & Joshua T. Fergen, The Vertical Patterns of Wind Energy: The Effects of Wind Farm Ownership on Rural Communities in the Prairie Pothole Region of the United States, 13 J. Rural & Cmty. Dev. 130 (2018) (investigating effects of ownership structure of wind farms on host communities); Rand & Hoen, supra note 208 (reviewing literature on wind acceptance); Scott & Smith, supra note 36 (exploring shifting dynamics of sacrifice zones in green energy era); Juliet E. Carlisle et al., Support for Solar Energy: Examining Sense of Place and Utility‑Scale Development in California, 3 Energy Rsch. & Soc. Sci. 124 (2014) (examining public attitudes toward large‑scale solar in Southern California); Alexa Burt Engelman, Against the Wind: Conflict over Wind Energy Siting, 41 Env’t L. Rep 10549 (2011) (discussing conflicts over wind siting). ↑
210. There are many official and unofficial definitions of “rural.” Austin Sanders, Rural Classifications – What is Rural?, U.S. Dep’t of Agric., https://www.ers.usda.gov/topics/rural-economy-population/rural-classifications/what-is-rural [https://perma.cc/NMQ6-LSZT] (last updated Jan. 8, 2025). “Most population thresholds used to differentiate rural and urban communities range from 5,000 up to 50,000, depending on the definition.” Id. Lower populations, population sparseness, and distance from population centers tend to be considered key characteristics. Eisenberg, supra note 15, at 28–31. ↑
211. See generally Eisenberg, Extracting Clean Energy, supra note 27 (exploring additional concerns about extraterritorial economic impacts, procedural exclusion, impacts on quality of life, planning issues, and recognizing that, in addition to developers and landowners, distant consumers tend to be the main beneficiaries of the projects). ↑
212. See, e.g., Bednarikova et al., supra note 209, at 5, 78 (discussing economic advantages of wind industry and providing example of a county where support is high). ↑
213. Klass & Wiseman, supra note 4, at 264; see also Goldberg et al., supra note 209, at 166. ↑
214. Klass & Wiseman, supra note 4, at 264. ↑
215. Ochoa et al., supra note 185, at 1106; Wiseman et al., Farming Solar on the Margins, supra note 22, at 549; Welton & Eisen, supra note 40, at 361. ↑
216. Ochoa et al., supra note 185, at 1106. ↑
217. Cf. Engelman, supra note 209, at 10549, 10550 (discussing controversy over installing wind turbines on scenic Appalachian trail); Hannah J. Wiseman, Localizing the Green Energy Revolution, 70 Emory L.J. Online 59, 72 (2021); Welton & Eisen, supra note 40, at 360 (recognizing significance of landscape disruptions). ↑
218. Hannah J. Wiseman, Taxing Local Energy Externalities, 96 Notre Dame L. Rev. 563, 572 (2020). ↑
219. Emily Hammond, The Community Veto and the Clean Energy Transition, 85 Ohio St. L.J. 1031, 1045 (2024) (noting that threats to identity can be difficult to measure as a source of opposition but proposing that these concerns still matter). ↑
220. See Ochoa et al., supra note 185, at 1101 (discussing multigenerational farmers’ resistance to wind turbines). ↑
221. Id. at 1104. ↑
222. Crawford et al., supra note 209, at 5; cf. Goldberg et al., supra note 209, at 23–24 (noting that although farms can be fully restored to prior state after removal of solar farm after 20–25 years, farming families may have moved on, thus impacting community agricultural character nonetheless). ↑
223. Crawford et al., supra note 209, at 7; accord Eisenberg, Extracting Clean Energy, supra note 27. ↑
224. Tom Daniels & Hannah Wagner, Regulating Utility‑Scale Solar Projects on Agricultural Land, Kleinman Ctr. for Energy Pol’y (Aug. 11, 2022), https://kleinmanenergy.upenn.edu/research/publications/regulating-utility-scale-solar-projects-on-agricultural-land [https://perma.cc/4JWR-5XLJ]. ↑
225. Douglas L. Bessette & Sarah B. Mills, Farmers vs. Lakers: Agriculture, Amenity, and Community in Predicting Opposition to United States Wind Energy Development, Energy Rsch. & Soc. Sci., Feb. 2021, at 1, 2. ↑
226. Agrivoltaics: Solar and Agriculture Co‑Location, U.S. Dep’t of Energy, https://www.energy.gov/eere/solar/agrivoltaics-solar-and-agriculture-co-location [https://perma.cc/75TS-CCSF]. ↑
227. Karen Maguire et al., Agricultural Land Near Solar and Wind Projects Usually Remained in Agriculture After Development, USDA Econ. Rsch. Serv.: Amber Waves (Sep. 12, 2024), https://www.ers.usda.gov/amber-waves/2024/september/agricultural-land-near-solar-and-wind-projects-usually-remained-in-agriculture-after-development [https://perma.cc/EA3V-YHVG]. ↑
228. Cf. Robert Bonnie et al., Nicholas Inst. for Env’t Pol’y Sol., NI R 20‑03, Understanding Rural Attitudes Toward the Environment and Conservation in America 34 (2020), https://nicholasinstitute.duke.edu/sites/default/files/publications/understanding-rural-attitudes-toward-environment-conservation-america.pdf [https://perma.cc/V3R4-Z4S4] (discussing case study finding that “wildlife are very important” to rural residents’ quality of life); Loka Ashwood, For‑Profit Democracy 190 (2018) (“Much rural pride centers on a close relationship with the ecological world, which materializes in self‑sufficiency and local know‑how.”). ↑
229. Ochoa et al., supra note 185, at 1109; Buechler & Martínez‑Molina, supra note 209, at 7 (noting that a respondent expressed concerns about migratory birds and harms to wildlife affecting local tourism economy). ↑
230. Wiseman et al., Farming Solar on the Margins, supra note 22, at 532. ↑
231. Crawford et al., supra note 209, at 7; see also Spangler et al., supra note 205, at 4–5 (explaining that heritage and value of inherited farmland was more important to interviewees than potential additional income from solar leases). ↑
232. O’Shaughnessy et al., supra note 191, at 5–6; Kolby Terrell, Oklahoma Landowners Exploring What Can Be Done to Prevent Turbines Being Built Near Their Homes, Koco News, https://www.koco.com/article/oklahoma-lincoln-county-wind-turbines-fight/60143794 [https://perma.cc/P3DM-ZRPP] (last updated Mar. 8, 2024, at 7:26 PM). ↑
233. Ochoa et al., supra note 185, at 1102. ↑
234. Pruitt, The Rural Lawscape, supra note 30, at 192. ↑
235. Id. at 197. ↑
236. Lisa R. Pruitt, Rural Rhetoric, 39 Conn. L. Rev. 159, 164 (2006) [hereinafter Pruitt, Rural Rhetoric]; Pruitt, The Rural Lawscape, supra note 30, at 197 (listing shorthand terms used to refer to rural as non-urban: “outback, middle of nowhere, up a holler, in the boonies, back of beyond, frontier, bush, countryside, wilderness, periphery, exurbia, open space”). ↑
237. See Richard Dewey, The Rural‑Urban Continuum: Real but Relatively Unimportant, 66 Am. J. Socio. 60, 60 (1960). ↑
238. Pruitt, The Rural Lawscape, supra note 30, at 197. ↑
239. Ashwood, supra note 228, at 190. ↑
240. Pruitt, Rural Rhetoric, supra note 236, at 170–72 (discussing competing conceptions of rural identity); Lisa R. Pruitt, Gender, Geography & Rural Justice, 23 Berkeley J. Gender L. & Just. 338, 346 (2008) (discussing additional competing conceptions of rural identity). ↑
241. Pruitt, Rural Rhetoric, supra note 236, at 173 (discussing agriculture as often associated with rural identity). ↑
242. Id. at 176–77, 203 (discussing jurists equating rurality with “a link to agriculture, scenic beauty, sparse population or another factor” and urbanness with “going industrial”). ↑
243. Cf. Ashwood, supra note 228, at 190 (discussing prospect that “devastation of rural communities and farm life through industrialization” is “the devastation of America itself” because society will no longer have a “land‑people dyad”). ↑
244. See Hoesch et al., supra note 50, at 12 (indicating that although higher perceived engagement from developers is associated with more positive attitudes toward projects, locals expected more engagement than they received and felt they lacked information); Anderson & Johnson, supra note 11, at 2 (discussing procedural injustice in the energy transition); Natalia Ojeda‑León, Lake County Renewable Energy Transition: An Assessment from the Energy Justice Framework 20 (Dec. 19, 2022) (M.P.P. Project, Oregon State University), at 29 (on file with author) (discussing locals’ feelings of exclusion in siting processes); Gwen Ottinger et al., Procedural Justice in Wind Facility Siting: Recommendations for State‑Led Siting Processes, 65 Energy Pol’y 662, 662 (2014). ↑
245. See generally Peter Norman, Building Power: Can Wind and Solar Development Foster Equity and Democracy?, Geo. Env’t L. Rev. (forthcoming 2025). ↑
246. Salma Elmallah & Joseph Rand, “After the Leases are Signed, it’s a Done Deal”: Exploring Procedural Injustices for Utility‑Scale Wind Energy Planning in the United States, Energy Rsch. & Soc. Sci., July 2022, at 1. ↑
247. Wiseman et al., Renegotiating the Energy Transition, supra note 202, at 647–48, 684. ↑
248. Eisenberg, Extracting Clean Energy, supra note 27, at 125–26 (citing Ochoa et al., supra note 185, at 1095, 1095–99, 1100). ↑
249. Crawford et al., supra note 209, at 6–7 (noting that residents “cit[ed] distrust of developers and officials or the process by which [solar farms] were permitted”); see also Ochoa et al., supra note 185, at 10659. ↑
250. Ochoa et al., supra note 185, at 10656. ↑
251. Buechler & Martinez‑Molina, supra note 209, at 6. ↑
252. Eisenson, supra note 177, at 122 (noting “large impact” of local rural opposition on deployment of solar). ↑
253. Rule, supra note 34, at 452 (characterizing local restrictions on solar farms as “rooted in misinformation or unfounded fears”); Hoesch et al., supra note 50, at 10 (quoting survey respondent who felt opponents of solar were “uninformed/selfish”). ↑
254. See Section I.A, supra (discussing peasant reactions to English enclosure, including riots, protests, and petitioning government institutions). ↑
255. Felicity Barringer, Thirsty for Power and Water, AI‑Crunching Data Centers Sprout Across the West, Stan. Univ.: Bill Lane Ctr. for the Am. W. (Apr. 8, 2025), https://andthewest.stanford.edu/2025/thirsty-for-power-and-water-ai-crunching-data-centers-sprout-across-the-west [https://perma.cc/AA6K-7FJX]. ↑
256. See, e.g., Sarah Elbeshbishi, Locals Fought for Details About a Planned Data Center Complex. Lawmakers Took Away Their Power to Do Anything About It., Mountain State Spotlight (Aug. 23, 2025), https://mountainstatespotlight.org/2025/08/03/lawmakers-strip-local-authority-data-centers [https://perma.cc/57C6-QN9Z]. ↑
257. Id. ↑
258. See supra Section I.C. ↑
259. See Tony Arnold, The Reconstitution of Property: Property as a Web of Interests, 26 Harv. Env’t. L. Rev. 281, 281–82 (2002) (describing property as a dynamic web of interests that matters fundamentally to human‑human and human‑nature relationships). ↑
260. See Pruitt, The Rural Lawscape, supra note 30, at 191. ↑
261. Id. ↑
262. See Eisenberg, supra note 15, at 27 (discussing definitions of rural). ↑
263. Pruitt, The Rural Lawscape, supra note 30, at 190. ↑
264. Id. at 191. ↑
265. Shoemaker, supra note 1, at 816. ↑
266. Id. ↑
267. Id. ↑
268. See id. at 833 (noting that collective choices about property shape people‑place relations). ↑
269. See Marla R. Emery & Alan R. Pierce, Interrupting the Telos: Locating Subsistence in Contemporary U.S. Forests, 37 Env’t & Plan. 981, 985–88 (2005) (discussing how, while the Alaska National Interest Land Conservation Act, the Hawai‘i State constitution, and certain treaties and statutes explicitly guarantee hunting, fishing, trapping, and gathering rights for Indigenous tribes, people from a variety of ethnic and regional backgrounds throughout the United States continue to rely on hunting, fishing, and gathering to survive, with access dependent on legal regimes governing public and private land); Baylen J. Linnekin, Food Law Gone Wild: The Law of Foraging, 45 Fordham Urb. L.J. 995, 1004 (2018) (discussing rural foraging practices); Jacqueline Jones, The Late Twentieth‑Century War on the Poor: A View from Distressed Communities Throughout the Nations, 16 B.C. Third World L.J. 1, 6 (1996) (discussing how rural, predominantly white, poor families in certain regions “piece together a patchwork livelihood of seasonal wage work, gardening, hunting and foraging, and cooperation among kin and neighbors”); Benson v. State, 2006 S.D. 8, ¶ 6, 710 N.W.2d 131, 137–39 (rejecting constitutional challenge to S.D. Codified Laws § 41‑9‑1.1, which created exception to default rule that hunters need permission of property owners before hunting on private property if hunters are hunting from public rights of way); Anthony B. Schutz, Toward A More Multi‑Functional Rural Landscape: Community Approaches to Rural Land Stewardship, 22 Fordham Env’t L. Rev. 633, 684 (2011) (discussing policy frameworks that capitalize on private landowners’ importance to hunting activities). ↑
270. Cf. Ochoa et al., supra note 185, at 1102 (describing example of how changes to land use and agriculture can affect local economic activity); see also Lindsey L. Johnson, Urban Creep in Upstate New York: Optimizing the Preservation of Agricultural Land, 82 Alb. L. Rev. 665, 665 (2019) (discussing connections among farmland preservation, preservation of agricultural economic activity, and preservation of rurality). ↑
271. See generally Susan M. Christopherson, Sources of Economic Development in the Finger Lakes Region: The Critical Importance of Tourism and Perceptions of Place (2015), https://greenchoices.cornell.edu/resources/publications/footprint/Economic_Development_in_Finger_Lakes.pdf [https://perma.cc/ZJ22‑LFCU] (discussing strategic initiatives to develop a high‑producing wine production region and dependence of region on winery tourism). ↑
272. See generally id. (discussing the threat certain forms of energy development pose to current agri‑tourism regime). It might be argued that rural populations wishing to protect these features should do so by adopting zoning ordinances. It is rarer and more challenging for land use planning to take place in rural localities due to population sparseness. Ann M. Eisenberg, Disaster Recovery in Rural Communities, in The Cambridge Handbook of Disaster Law and Policy 229–39 (Susan S. Kuo et al. eds., 2022) (discussing relatively weak practices of land use planning in rural communities). Such efforts would also arguably be ineffectual after all if states were poised to preempt local authority anyway. ↑
273. Lyke, supra note 5, at 321. ↑
274. Id. at 326. ↑
275. Id. ↑
276. Id. ↑
277. Id. ↑
278. Cf. Shoemaker, supra note 1, at 836 (discussing how choice to decouple ownership and possession “radically shapes our collective experiences of space”). ↑
279. See 28A C.J.S. Easements § 66 (2025) (explaining that a negative easement allows the holder of the easement “to preclude the owner of the land subject to the easement from doing that which, if no easement existed, he or she would be entitled to do”). ↑
280. See 8 McQuillin Mun. Corp. § 25:103 (3d ed.) (2025) (defining “floating zone” as a special use district “of undetermined location in which the proposed kind, size and form of structures must be preapproved”). ↑
281. Ochoa et al., supra note 185, at 1102. ↑
282. Susskind et al., supra note 209, at 9 (discussing locals’ sense of exclusion in decision‑making processes for renewables siting); Nilson, supra note 209, at 15, 52– 53, 82 (discussing locals’ concerns related to project scale and economic distributive justice, including concern that economic benefits of projects are not fairly distributed in part because economic gains from large solar projects “primarily accrue to the solar developers and the select large‑scale landowners who sell or lease property for development”); see also Xue Gao et al., Unveiling and Explaining the Procedural Justice in the Policy Design of Renewable Energy Siting Process in the United States, 53 Pol’y Stud. J. 556, 572 (2024) (noting that “growing and widespread opposition to renewable energy projects in the United States reflects a public demand for a decision‑making process that is participatory, fair, and inclusive”). ↑
283. Crawford et al., supra note 209, at 6 (referencing “technocratic and top‑down ‘decide‑announce‑defend’ framework commonly deployed in energy siting processes”). ↑
284. Elmallah & Rand, supra note 246, at 1, 2–3; see also Gao et al., supra note 282, at 573 (finding that public meetings do not necessarily translate to inclusive process and the provision of information for large renewable energy projects tends to be inadequate); Hoesch et al., supra note 50, at 7 (reporting that only ten percent of respondents in study knew about a particular project during the planning process). ↑
285. Wiseman et al., Renegotiating the Energy Transition, supra note 202, at 641. ↑
286. Gao et al., supra note 282, at 572 (suggesting that “policymakers tend to regard public participation as tokenistic which has limited value for improving the quality of decision making”). ↑
287. Wiseman et al., Renegotiating the Energy Transition, supra note 202, at 642. ↑
288. Gao et al., supra note 282, at 561. ↑
289. See Anderson & Johnson, supra note 11, at 3. ↑
290. Hoesch et al., supra note 50, at 6; Hammond, supra note 219, at 1047 (indicating that communities “want to be partners in decision‑making processes, not simply kept informed about decisions”). ↑
291. See Anderson & Johnson, supra note 11, at 3 (identifying that advocacy for state and national climate policies “can produce ‘strong anti‑democratic actions toward people living closest to and more impacted by these energy projects’”). ↑
292. Hoesch et al., supra note 50, at 10. ↑
293. Id. at 10 (noting that neighbors who signed a petition against solar farm received a letter threatening a lawsuit if they fought the plan). ↑
294. Cf. id. at 2 (discussing procedural exclusion as a significant factor driving opposition to wind development in upstate New York). ↑
295. Cf. Gao et al., supra note 282, at 18 (“[T]he most significant gap in practice for procedural justice is the lack of clear mechanisms for translating public participation into policy decisions.”); Hoesch et al., supra note 50, at 7 (discussing public perception that the public should actually be able to contribute to decisions). ↑
296. Loka Ashwood has argued, for instance, that the state and the energy industry are virtually two sides of the same coin. She documents how despite their profit motivations, “private energy firms seamlessly qualified as public servants” starting in the early twentieth century. Ashwood, supra note 228, at 23. This designation of private company as public foot soldier was intimately connected to enclosing patterns, in which government institutions prioritized large‑scale public works projects and designated those projects and their corporate owners as more important than the activities of people “engaged in agrarian or domestic endeavors.” Id. ↑
297. Hammond, supra note 219, at 1047. ↑
298. Robi Nilson et al., Halfway Up the Ladder: Developer Practices and Perspectives on Community Engagement for Utility‑Scale Renewable Energy in the United States, Energy Rsch. & Soc. Sci., Nov. 2024, at 1, 6; Hammond, supra note 219, at 1047. ↑
299. Wiseman et al., Renegotiating the Energy Transition, supra note 202 (discussing pressures on local government officials from constituents); Edward W. De Barbieri, Lawmakers as Job Buyers, 88 Fordham L. Rev. 15, 18–20 (2019) (discussing political benefits for elected state and local officials to try to court private industries for economic development). ↑
300. Marzec, supra note 64, at 84. ↑
301. Scott & Smith, supra note 36, at 867; Hammond, supra note 219, at 1033 (discussing the urgency of action on climate change and “climate change fundamentalism” advocating that questions of justice should be sidelined if they cause delay to decarbonization); Gabriele Wadlig, The International Law of Land (Grabbing): Human Rights and Development in the Context of Racial Capitalism, 25 Chi. J. Int’l L. 479, 508–09 (2025) (noting how invocation of concerns including climate change can be used to justify land displacement); cf. White et al., supra note 156, at 631–32 (discussing the centrality of crisis narratives to enclosures). ↑
302. Felix Mormann, Clean Energy Equity, 2019 Utah L. Rev. 335, 338. ↑
303. Scott & Smith, supra note 36, at 863. ↑
304. Hammond, supra note 219, at 1033. ↑
305. Shelley Welton, Decarbonization in Democracy, 67 UCLA L. Rev. 56, 59 (2020) (challenging assumption that “the people are necessarily a barrier to climate progress”). ↑
306. Rule, supra note 34, at 464 (characterizing rural resistance to solar farms as “an increasingly impactful impediment”); Eisenson, supra note 177, at 122 (arguing that “there is no justification” for substantial restrictions of solar development on farmland). ↑
307. Public Utilities Act, 220 Ill. Comp. Stat. Ann. 5/1‑102 (2024). ↑
308. Anderson & Johnson, supra note 11, at 9. ↑
309. Hammond, supra note 219, at 1032. ↑
310. White et al., supra note 156, at 631–32. ↑
311. Vasudevan et al., supra note 86, at 1644. ↑
312. See discussion supra Sections II.B, III.A. ↑
313. See, e.g., Rule, supra note 34, at 452, 471 (arguing in favor of a new wave of state legislation designed to strengthen rural landowners’ private property rights). ↑
314. Hamilton, supra note 149, at 387 (discussing landowners’ rights to use, exclude, and alienate land). ↑
315. See Shelby Curry, Comment, Preserving, Promoting, and Protecting: The Power of a Family Limited Partnership for Renewable Energy Leases, 17 Est. Plan. & Cmty. Prop. L.J. 103, 110–13 (2024) (discussing typical terms and relationship of renewable energy leases to landowners’ real property interests). ↑
316. Cal. Pub. Res. Code § 25545(b) (2025) (authorizing developers of large renewable projects to seek approval path that supersedes local regulation); Public Utilities Act, 220 Ill. Comp. Stat. Ann. 5/1‑102 (2024) (providing that the state, rather than local governments, has authority to regulate utility‐scale wind and solar and thereby preempting local regulation); An Act Limiting Municipal Control of Large‐Scale Renewable Energy Projects,
     Me. Legis. Doc. 1975 (2024) (limiting municipal authority over certain large‑scale renewable energy siting); An Act Promoting a Clean Energy Grid, Advancing Energy Equity, and Protecting Ratepayers,
     Mass. Act of 2024, ch. 239 (reducing municipal oversight and streamlining permitting for larger renewable energy projects); Accelerated Renewable Energy Growth and Community Benefit Act,
     N.Y. Laws 2020, ch. 58, pt. T (codified in part at N.Y. Exec. Law § 94‑c) (preempting local land use laws that delay or block utility‑scale renewable deployment, by creating a centralized siting review process); Md. Code Ann. Pub. Util. § 7‑207 (2024) (centralizing approval to state level and providing that local zoning be given only “due consideration”); Mich. Comp. Laws § 460.1231 (2024) (limiting application of local regulations if they are more restrictive than state certification requirements). ↑
317. Minn. Stat. § 216I.05 (2025) (establishing a centralized state permitting process for large energy facilities through the Minnesota Public Utilities Commission, which preempts local zoning authority); Wash. Rev. Code § 80.50.020 (2022) (creating the state Energy Facility Site Evaluation Council to recommend approval of major energy projects, thereby consolidating siting authority at the state level and curtailing local review); Wis. Stat. § 66.0401 (2025) (reserving regulation of wind and other energy systems primarily to the state Public Service Commission, limiting local governments’ ability to impose restrictions). ↑
318. Cf. Carol Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Calif. L. Rev. 837, 882–83, 887–88 (1983) (characterizing land use law as an avenue to mediate conflicting claims about property development and make “sensitive adjustments of individual property rights” and stating that changes in land use regulation involve “conflicting views about the boundaries of property rights, which may be quite fluid”); Shoemaker, supra note 133, at 1569 (noting that federal preemption of some tribal decision‑making avenues limits tribes’ ability to determine their own land tenure priorities). ↑
319. Cf. Kammer, supra note 33, at 46 (discussing processes that contribute to commodification of property, including disregard for natural terrain and land relations, surveying, and preemption of local input). ↑
320. See Hamilton, supra note 149, at 382–84 (discussing how land tenure is shaped by a collection of factors shaping the legal environment for land use); Kammer, supra note 33, at 46–47 (describing an instance of preemption as means of transferring control of land between different populations). ↑
321. Bozuwa & Mulvaney, supra note 34, at 2–6 (noting that environmental review processes under the National Environmental Policy Act (NEPA) have received increased scrutiny from climate advocates and others, including the fossil fuel industry, resulting in passage of the Fiscal Responsibility Act of 2023 weakening NEPA’s procedural safeguards; other environmental statutes implicated in permitting reform debate include the Clean Water Act, Clean Air Act, Endangered Species Act, and National Historic Preservation Act, in addition to separate processes involved in transmission line buildout). ↑
322. See id. at 25 (noting that much of the permit reform advocacy comes from the fossil fuel industry). See generally Anderson & Johnson, supra note 11 (discussing links among preemption reform for renewable energy and the perception that rural justice burdens are insignificant). ↑
323. See discussion supra Part I. ↑
324. See Eisenberg, supra note 15, at 25–46 (discussing quantitative and qualitative metrics that illustrate rurality as a class phenomenon and not merely a geographic one). ↑
325. Pruitt, Rural Rhetoric, supra note 236, at 349. ↑
326. Loka Ashwood, Rural Conservatism or Anarchism? The Pro‑State, Stateless, and Anti‑State Positions, 83 Rural Socio. 717, 717–18 (2018). ↑
327. Jazmin Orozco Rodriguez, Rural Americans Are Way More Likely to Die Young. Why?, KFF Health News (Apr. 15, 2024), https://kffhealthnews.org/news/article/health-202-rural-life-expectancy [https://perma.cc/FV8E-PZ29]. ↑
328. Elizabeth Trovall, The Rural-Urban Income Divide Persists, and It May Be Worsening, Marketplace (Nov. 30, 2023), https://www.marketplace.org/story/2023/11/30/rural-urban-wage-gap-covid [https://perma.cc/Q8R3-F8X7]; Carrie Henning‑Smith et al., Univ. of Minn. Rural Health Rsch. Ctr., Rural Transportation: Challenges and Opportunities (2017), https://rhrc.umn.edu/wp-content/files_mf/1518734252UMRHRCTransportationChallenges.pdf [https://perma.cc/3HCK-YQ5S] (discussing rural transportation challenges); Molly P. Jarman et al., Rural Risk: Geographic Disparities in Trauma Mortality, 160 Surgery 1551 (2016) (discussing barriers to rural healthcare access). ↑
329. Andis Robeznieks, Inequitable Rural Health Trends Are Alarming—and Unacceptable, AMA: Population Health (Dec. 13, 2024), https://www.ama-assn.org/delivering-care/population-care/inequitable-rural-health-trends-are-alarming-and-unacceptable [https://perma.cc/9RZE-MXU7]. ↑
330. Loka Ashwood & Kate MacTavish, Tyranny of the Majority and Rural Environmental Justice, 47 J. Rural Stud. 271, 274 (2016). ↑
331. Ashwood, supra note 326, at 717. ↑
332. Anderson & Johnson, supra note 11. ↑
333. Id. ↑
334. Eisenberg, Extracting Clean Energy, supra note 27, at 105 (“[A] trend is already emerging: poorer, more rural localities are hosting large‑scale clean energy generation for everyone else’s benefit.”). ↑
335. Rule, supra note 34, at 461 (recognizing that leases to private landowners are one of the main benefits of large‑scale solar deployment in rural economies). ↑
336. Mills, supra note 204, at 221–22. ↑
337. See id. at 222 (stating that although there is some potential for wind energy to benefit rural economic development, “the influx of cash, particularly when concentrated in the hands of just a few landowners, has the potential to create tensions in the community”); cf. Polanyi, supra note 100, at 20 (discussing how “the essence of purely economic progress, which is to achieve improvement at the price of social dislocation . . . also hints at the tragic necessity by which the poor man clings to his hovel, doomed by the rich man’s desire for a public improvement which profits him privately”). ↑
338. Lyke, supra note 5, at 341. ↑
339. Id. at 322, 346–64 (discussing ways in which enclosure movements have been resisted, including acts of civil disobedience and reorienting narratives and policy conversations toward commons management). ↑
340. See id. at 340. ↑
341. Id. ↑
342. See id. at 346 (emphasizing the importance of adopting a commons framework in the face of enclosure); see also Shoemaker, supra note 149, at 252 (stating that “pre‑existing land relations matter in any land reform project”). See generally Boyle, supra note 6 (criticizing enclosure as harmful in diverse ways). ↑
343. Forrest Watkins, Solar Gardens: A Community Garden for Clean Energy, Solstice (July 14, 2017), https://solstice.us/solstice-blog/solar-gardens-community-clean-energy [https://perma.cc/4ECJ-5SDC]. ↑
344. Id. ↑
345. See id. ↑
346. See Gilbert Michaud, Perspectives on Community Solar Policy Adoption Across the United States, 33 Renewable Energy Focus 1, 1 (2020) (noting that as of the time of its writing, sixteen states and the District of Columbia had state‑enabling legislation for community solar). ↑
347. Id.; Alex Mey, Most U.S. Utility‑Scale Solar Photovoltaic Power Plants Are 5 Megawatts or Smaller, U.S. Energy Info. Admin.: Today in Energy (Feb. 7, 2019), https://www.eia.gov/todayinenergy/detail.php?id=38272 [https://perma.cc/VXT8‑7UYE] (stating that average capacity of community solar is 2.0 MW); Wehnes, supra note 181. ↑
348. Michaud, supra note 346, at 3. ↑
349. Id. ↑
350. Lowell J. Chandler, Localizing Energy Independence: How PURPA and Community Power Legislation Can Drive Development of Resilient and Reliable Local Clean Energy Projects, 44 Pub. Land & Res. L. Rev. 199, 232 (2021) (noting that as of 2020, “[s]everal states ha[d] unlocked the potential of community power projects” through “enabling legislation and other incentives”). ↑
351. Colo. Rev. Stat. § 40‑2‑127 (2024) (establishing community solar gardens); Minn. Stat. § 216B.1641 (2025) (creating community solar garden program with at least five subscribers and bill‑crediting); Mass. Gen. Laws ch. 164, § 139 (2022) (authorizing net metering, including shared credits for community solar subscribers); N.Y. Pub. Serv. Law §§ 66‑j, 66‑l (2022) (authorizing net metering and establishment of Community Distributed Generation so subscribers receive bill credits); Or. Rev. Stat. § 757.386 (2023) (directing PUC to establish a community solar program with subscriber bill credits). ↑
352. Michaud, supra note 346, at 6 (discussing utility companies’ view that community solar “is a logistical nightmare”). ↑
353. Cf. Polanyi, supra note 100, at 22 (stating that in English enclosure, rulers “used the power of the Crown to slow down the process of economic improvement until it became socially bearable—employing the power of the central government to relieve the victims of the transformation, and attempting to canalize the process of change so as to make its course less devastating”). ↑
354. Cf. Shoemaker, supra note 149, at 241 (noting importance of, and resistance to, adapting property theory and property law to climate change and growing inequality). ↑
355. Walters, supra note 173, at 2132. ↑
356. See Stump, supra note 59, at 405 (noting that “decoupling growth from carbon emissions via transitions to renewable energy is not occurring on a swift enough timescale to avert catastrophic climate change in part because perpetual economic growth demands ever‑more energy use, thus problematizing the renewable energy transition and increasing emissions”); cf. Gregory M. Fulkerson & Alexander R. Thomas, Urban Dependency: The Inescapable Reality of the Energy Economy (2021) (detailing how modern cities depend on extraction and transportation of rural resources). ↑
357. See Hickel, supra note 59, at 39 (noting that humans have been on the planet “fully evolved, fully intelligent, exactly as we are today,” and that “[f]or approximately 97% of that time our ancestors lived in relative harmony with the Earth’s ecosystems” until the advent of capitalism); cf. Karrigan Börk et al., Living the Good Life in the Anthropocene, 54 Env’t L. Rep. 10857, 10878 (2024) (discussing origin of degrowth movement with MIT economists who cautioned that “we cannot innovate our way out of the climate catastrophe—technology alone w[ill] delay ecological collapse by only a few years”); Stump, supra note 59, at 404 (quoting Jason Hickel, What Does Degrowth Mean? A Few Points of Clarification, 18 Globalizations 1105, 1106 (2021) (discussing degrowth as “a ‘planned reduction of energy and resource throughput’ designed to bring the economy down into alignment with planetary boundaries while simultaneously promoting human flourishing and meeting material‑based community needs”); John Merrington, Town and Country in the Transition to Capitalism, New Left Rev., Sep./Oct. 1975, at 71, 71 (discussing interconnectedness of capitalism, urbanization, and the separation of rural production from urban consumption). ↑
358. Welton, supra note 305, at 61. ↑
359. Id. at 60. ↑
360. See generally Eisenberg, supra note 120. ↑
361. Shoemaker, supra note 149, at 253. ↑
362. Dylan Oliver Malagrino, Applying Communal Theories to Urban Property: An Anthropological Look at Using the Elaboration of Common Property Regimes to Reduce Social Exclusion from Housing Markets, 10 U.C. Davis Bus. L.J. 33, 57 (2009). ↑
363. Daniel Mishori, Reclaiming Commons Rights: Resources, Public Ownership and the Rights of Future Generations, 8 Law & Ethics Hum. Rts. 335, 364 (2014). ↑