MACo Challenges Local Preemption in Kent County Solar Case

MACo submitted comments to the Public Service Commission (PSC) and the Chief Public Utility Law Judge handling a Kent County case regarding local land use preemption by energy generation facilities such as solar farms. In its comments, MACo: (1) argued against the preemption of local land use requirements by “dispersed” energy generation facilities that feed power into the grid; and (2) improved communication between state energy regulatory agencies and county bodies.

The PSC case is: In the Matter of the Application of Mills Branch Solar, LLC for a Certificate of Public Convenience and Necessity to construct a 60 MW Solar Photovoltaic Generating Facility in Kent County, Maryland (Case No. 9411).  The case can have broad ramifications not only for local land use autonomy but also agricultural sustainability and scenic open space preservation.

As previously reported on Conduit Street, the  issue revolves around an application by Mills Branch Solar to put a solar energy farm on 300+ acres of Kent County land that is currently zoned agricultural. The application follows numerous applications for solar and wind farms throughout Maryland – Frederick, Prince George’s, and Washington Counties have also recently had to deal with similar proposed projects. In the Kent County case, Mills Branch decided to bypass working with the County, instead arguing that local land use requirements did not apply because it was an energy generation facility subject to PSC oversight.

MACo argued in its comments that local land use requirements should apply to these more dispersed energy generation facilities:

Comment #1: When considering the placement and location of “dispersed” energy generation facilities, like photovoltaic or solar facilities, local land use requirements should apply.

There are two primary reasons why local land use requirements should apply to these kinds of facilities:

First, the nature of energy generation facilities have changed over time and preemption does not make sense in the same way it does with “traditional” energy generation facilities or transmission lines. Energy generation technology has advanced rapidly while state laws and regulations that address their siting and location have not evolved in a similar fashion. Some local preemption makes sense with traditional energy generation facilities such as coal, oil, or nuclear plants. These facilities require significant space, infrastructure, and come with publicly perceived disadvantages that all but guarantee a “not in my backyard” response regardless of where they are placed. Similar preemption arguments also apply to transmission lines.

However, technology now allows for utility-scale/output-to-grid facilities (such as wind, solar, gasification, or anaerobic digestion) to be located in a more dispersed manner anywhere there is suitable open land. Often, little additional infrastructure is needed and such facilities can range in size from an acre to hundreds of acres. Over time, the cumulative effect of these dispersed facilities on a county and its residents can be far more significant than one larger, more traditional facility.

Second, unlike traditional energy generation facilities, which could significantly disrupt a localized area, newer technology allows facilities to be dispersed throughout a region, directly putting a county’s agricultural and scenic open space lands at risk to fragmentation and loss. Every county values its agriculture and open space – they are often core components of a community’s identity and economic foundation. The permitting of numerous dispersed energy generation facilities in a region, without county oversight, will likely cause open space and agricultural land fragmentation and the potential loss of viable agriculture in a region, as farmland and open space becomes increasingly used for energy generation.

MACo also called for a review of the current communication process between state energy regulatory facilities and the counties:

Comment #2: Communication between the counties, PSC, Power Plant Research Program (PPRP), and other energy utility agencies should be reviewed and improved.

As the nature of energy generation facilities and technology continues to evolve, it is vitally important that the PSC, PPRP, other energy utility regulatory agencies, and county governments communicate and work together more closely. MACo believes that both PSC and PPRP staff are diligent and genuine in their efforts to work with local governments. However, the longstanding and traditional communications framework is no longer sufficient given the new challenges posed by changing energy technologies.

Counties need better communication from state agencies in order to properly offer feedback and voice concerns. Additionally, there may be some areas where counties can do a better job communicating with the relevant state agencies. MACo requests a stakeholder group be convened to review and recommend changes to the current communication process.

Besides the PSC, MACo also submitted its comments to the Maryland Department of Natural Resources, the Maryland Department of Planning, and the Maryland Sustainable Growth Commission.

The Kent County Board of County Commissioners is holding a joint hearing with the PSC this evening at the Kent County Public Library (408 High St, Chestertown, MD 21620) at 6:00 PM. MACo Legal and Policy Counsel Les Knapp plans to attend.

MACo Comments on Kent County Solar Energy Generation Facility Preemption Case

PSC Case Docket for Kent County Case

Prior Conduit Street Coverage