By Sarah Everhart
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On July 15, the Maryland Court of Appeals (the state’s highest court) issued a decision in Board of County Commissioners of Washington County, Maryland v. Perennial Solar, LLC and provided clarity on the role of a local planning and zoning body in the approval process for the siting of a solar energy generating station (SEGS). For more information on the issues in the case and the lower courts’ decisions check out this previous post.
By way of background, an applicant for a SEGS has to go through an extensive process with the Public Service Commission (PSC) in order to have Certification of Public Convenience and Necessity (CPCN) issued, a prerequisite to being able to construct a SEGS. In Perennial Solar, the applicants, prior to seeking a CPCN, sought and received two local zoning approvals required for the SEGS land use, a special exception and a variance. Those land use approvals were then appealed to the Circuit Court and later to the Maryland Court of Special Appeals. On appeal, Perennial Solar’s contention was that the PSC’s regulatory authority over the siting and construction of a SEGS preempted local zoning approval by implication.
Premption occurs when a state law completely occupies a field or, in other words, covers all aspects of a topic to such an extent that a local law on the same subject is deemed to be trumped or overruled by the state law. By arguing this Perennial Solar was asking the courts to find, due to the detailed nature of the CPCN process, a local government, in this case Washington County, was prevented from using local zoning laws to control the location of a SEGS.
In order to decide if a local zoning body’s approval was in fact preempted the Court of Appeals had to analyze the legal framework of the CPCN process to determine if it was comprehensive enough to preempt local zoning laws. When an applicant applies for a CPCN, the Public Utilities Article requires the PSC coordinate with and include the local governing body of the county or municipality in a public hearing process designed to ensure local input and public comment on the proposed generating station is gathered, and also requires the PSC to consider the stability and reliability of the system; economics; esthetics; historic sites; aviation safety; air quality and water pollution; and the availability of means of the required timely disposal of wastes produced by any generating station. Maryland Code, Public Utilities Article, § 7-207(e)(2).
In 2017, the law governing this process was amended to require the PSC, prior to taking any final action on a CPCN application, give “due consideration” to the consistency of the application to the local comprehensive plan and zoning laws. Following the 2017 amendment, many counties such as Washington, took steps to add solar generating stations to local zoning laws and planning documents. The local zoning laws created a local regulatory hurdle in addition to the extensive CPCN process. These two competing approval regimes came to a head in Perennial Solar.
In reaching its decision, the Court of Appeals weighed several factors, including, among other things, the plain language and comprehensiveness of Maryland Public Utilities Article § 7-207, the General Assembly’s intent behind the 2017 amendment to PU § 7-207, as well as the two unpassed bills considered in the 2017 and 2019 General Assembly sessions that would have expanded local power in the process.
The Court, ultimately sided with Perennial Solar, and held that the General Assembly clearly intended to vest final authority with the PSC for the siting and location of generating stations that require a CPCN. According to the Court, “[a]lthough the local governing body’s recommendations are contemplated with “due consideration”, the final determination whether to approve a CPCN for a SEGS is ultimately made by the PSC.”
The Perennial Solar case is important because it resolved the confusion of two potentially contradictory levels of regulation (local zoning regulation and the CPCN process). Everyone in the process now knows that local zoning authorities can participate in the CPCN process and their opinion on the appropriateness of the location of a SEGS will be given “due consideration” by the PSC, however, ultimately where a SEGS will be located is the PSC’s decision.
If you are presented with an agreement from an energy company interested in using your farm as a place to generate solar energy, take a look at these past blog posts to understand the issues to consider in reviewing those agreements.
ALEI’s 5th Annual Agricultural and Environment Law Conference (Save the Date- November 14, 2019-Annapolis, MD) this year will feature a panel discussion on the CPCN process for solar siting. For more information on the Conference and other agricultural law issues check out the ALEI website.