In July last year, the Maryland Legislature passed a law giving the state just a little over a decade to achieve 50% renewable energy by 2030.[1] The law, enacted without Governor Larry Hogan’s signature, has encouraged the development of renewable energy projects throughout the state.[2] However, these projects have been facing opposition in local communities over concerns about projects being an “eyesore” and disrupting “agricultural economies.”[3]

 

Opposition at the local level had been slowing the approval and construction of renewable projects,[4] but a recent Maryland Court of Appeals’ decision has turned the tide, allowing the state’s Public Service Commission (PSC) “to trump the objections of county governments to solar and wind energy projects.”[5] In Board of County Commissioners of Washington County v. Perennial Solar, LLC, the court considered the extensiveness of the statutory scheme under Maryland Public Utility Companies section 7-207, which regulates solar energy, concluding that the General Assembly “intended to vest final authority with the PSC for the siting and location of generating stations requiring a [Certificate of Public Convenience and Necessity].”[6]

 

The court also looked at recent amendments and proposed alternatives, to better understand the scope of preemption intended by the legislature.[7] A 2017 amendment required the PSC to give “due consideration” to local planning and zoning, but the legislature rejected competing schemes that would have granted counties greater authority and influence in the process while limiting PSC’s authority.[8] Another alternative would have “authorized counties to adopt specific zoning regulations for the siting of generating stations” and limited the PSC’s power to preempt local zoning regulations to “circumstances where the PSC ‘determines that a proposed generating station is vital to grid integrity . . . [and] there is not a viable alternative site authorized under the zoning regulations.’”[9] Both of these were rejected, suggesting that the General Assembly intended section 7-207 to preempt local zoning approval authority.[10]

 

Although the PSC is the “ultimate decision-maker,” the Perennial Solar court also stated that the local government is a “significant participant in the process” and that the PSC should give local zoning laws “due consideration.”[11] In the wake of the decision, local communities are trying to figure out where they fit in and how they can effectively influence the PSC. In September, the Washington County Board of Commissioners directed Planning and Zoning Director Stephen Goodrich to “borrow[] best practices from other counties” for “participat[ing] in the state process.”[12] One remaining question about the influence of the decision on local zoning laws is how it could affect the county’s “priority preservation areas.”[13] The Washington County Planning and Zoning Director, Stephen Goodrich, has expressed fears that the PSC could preempt a county zoning law which bars solar farms from priority preservation areas.[14]

 

In the meantime, Perennial Solar is already affecting proposed projects in Washington County. In October, a controversial solar project was approved over local opposition.[15] Even though county zoning law addresses solar farms, the Perennial Solar decision overrides the county’s authority and grants the PSC the final say.[16] County commissioners had sent a letter to the PSC asking for the project to be denied because of its aesthetic and economic impacts on nearby properties, but it was unpersuasive.[17]

 

Local officials are also considering how to influence developers, to prevent large, disruptive projects from taking up usable farmland.[18] Some officials have suggested encouraging “developers to put solar farms over parking lots or on the roofs of industrial buildings and warehouses.”[19] One proposed incentive is a tax discount to move projects off usable farmland. Alternatively, some have proposed levying a tax for solar farms built on farmland, the revenue of which would be put in a “farm preservation pot.”[20] If these plans to influence developers work, controversial proposals would not be in front of the PSC in the first place, avoiding the risk of it overruling local objections.

 

As renewable energy development ramps up to meet the state’s 50% by 2030 goal, conflicts between state and local governments are likely to increase. These conflicts are echoed across the country.[21] Support for renewable energy has increased,[22] but opposition to individual projects persists over potential negative impacts on local communities.

[1] Scott Dance, Maryland bill mandating 50% renewable energy by 2030 to become law, but without Gov. Larry Hogan’s signature, Balt. Sun (May 22, 2019, 6:40 PM), https://www.baltimoresun.com/news/environment/bs-md-renewable-energy-law-20190522-story.html.

[2] Id.; Mike Lewis, Washington County Commissioners seek best practices in regulating solar farms, Herald-Mail Media (Sept. 28, 2019), https://www.heraldmailmedia.com/news/local/washington-county-commissioners-seek-best-practices-in-regulating-solar-farms/article_c3363d38-73fe-56b4-99e2-a8976a8b419e.html.

[3] Scott Dance, Maryland’s highest court rules state can trump counties in deciding where solar, wind projects can go, Balt. Sun (July 17, 2019, 5:00 AM), https://www.baltimoresun.com/news/environment/bs-md-court-ruling-power-projects-20190717-ndq6q6todfhwjcnri7www7lft4-story.html.

[4] Id.

[5] Id.

[6] Bd. of Cty. Comm’rs of Washington Cty. v. Perennial Solar, LLC, 212 A.3d 868, 880 (Md. 2019) (partially quoting Howard Cty. v. Potomac Power, 319 Md. 511, 523 (1990)).

[7] Id. at 882.

[8] Id. at 882–84.

[9] Id. at 883.

[10] Id. at 883–84.

[11] Id. at 887–88 (2019).

[12] Mike Lewis, supra note 2.

[13] Id.

[14] Id.

[15] Julie E. Greene, Kieffer Funk solar project gets OK for Chewsville area, Herald-Mail Media (Oct. 16, 2019), https://www.heraldmailmedia.com/news/local/kieffer-funk-solar-project-gets-ok-for-chewsville-area/article_597c1650-5462-59a0-85dc-6d488d3a159b.html.

[16] Julie E. Greene, Washington County officials discuss how to steer solar farms away from prime farmland, Herald-Mail Media (Aug. 11, 2019), https://www.heraldmailmedia.com/news/local/washington-county-officials-discuss-how-to-steer-solar-farms-away/article_b8c35591-29c3-5be3-9503-7b922ab8786b.html.

[17] Julie E. Greene, Kiefer Funk solar project gets OK for Chewsville area, supra note 15.

[18] Julie E. Greene, Washington County officials discuss how to steer solar farms away from prime farmland, supra note 16.

[19] Id.

[20] Id.

[21] For example, protests have erupted over wind farms in Hawaii, a state with one of the most extreme renewable energy goals in the country (100% by 2045). Robert Bryce, Hawaii protests show why wind energy can’t save us from climate change, Opinion (Nov. 13, 2019, 7:00 AM), https://thehill.com/opinion/energy-environment/469870-hawaii-protests-show-why-wind-energy-cant-save-us-from-climate.

[22]Clean Energy, Dep’t. of Energy, https://www.energy.gov/science-innovation/clean-energy (last visited Feb. 2, 2020).