Counties & Energy Companies Offer Perspectives on Energy Facility Preemption

A lengthy Baltimore Sun article (2016-10-15) provided an overview of the energy facility siting and local land use preemption issue that will be examined during the 2017 Session. As previously reported on Conduit Street, MACo has adopted the siting of “dispersed” energy generation facilities as one of its 2017 Legislative Initiatives. Unlike traditional power plants like coal, oil, or nuclear, these new types of facilities can be placed on a variety of farmland or open space with little additional infrastructure and include technologies such as wind, solar, gasification, or small incinerators. The article noted the explosive growth of solar facilities in particular in the last several years:

Energy companies, lured by a state policy that encourages renewable electricity generation and riding a larger industry boom, are flocking to Maryland farmland to build massive solar installations. Developers proposed 11,000 new solar projects in the state last year, more than twice as many as in 2014….

Currently, the Public Service Commission (PSC) is the state agency primarily responsible for the siting of energy generation facilities above a certain generation size. While the PSC has not yet taken a position on MACo’s proposal, the article cited a former PSC chairman, who argued that the authority should remain with the State. But given the new types of technologies involved, county officials and MACo are concerned that local comprehensive planning goals and the nature of a community can be arbitrarily upset if local zoning, preservation easements, and environmental requirements are ignored:

“The reason the PSC is given the power to make those decisions is that many times, local officials, if not their constituents, take the position, ‘It shouldn’t be here. It should be in someone else’s backyard,'” said Russell Frisby, who led the [PSC] from 1995 to 1998. “The authority really should remain with the Public Service Commission.”

But in rural communities that have already seen housing developments splinter and absorb farmland, solar farms are viewed as a new threat. …

“I don’t think it’s right that the PSC can just come in and say, ‘Guess what? We’ve just approved 48 500-foot wind turbines in your county,’ and plunk it down,” [Talbot County Councilman Dirck Bartlett]  said. “What that would do, without any local control, could really reshape an area forever.”

The article also discussed the competing challenges posed to individual farmers – a potentially lucrative and easy source of income during a time when they may be struggling versus keeping agriculture a viable industry in the state.

Some farmers weren’t interested — anything that breaks up open cropland makes farming more difficult and more expensive. …

Agricultural land is ideal for the energy projects because it is wide and flat, and already cleared, said Sebastien Houde, an assistant professor of agricultural and resource economics at the University of Maryland, College Park. And solar developers know they can match or exceed farmers’ income per acre, Houde said.

The article summarized two “flashpoint” cases in Kent and Allegany Counties that led to the broader discussion of energy facility siting:

Kent County officials designated a commercial and industrial zone years ago for renewable energy projects and other new industries. But at least one solar developer is looking outside it. Now the county is leading a fight against the [PSC’s] power. …

The problem for Kent officials and residents isn’t that it’s a massive solar farm — it’s that it’s not in the right place. …

In Allegany, Dan’s Mountain Wind Force wants to build 17 wind turbines along the county’s highest ridge.

The group, a subsidiary of Laurel Renewable Partners LLC in Greensburg, Pa., originally planned more, but scaled back amid eight years of back-and-forth with Allegany officials concerned about impacts to scenic mountain vistas and the county’s 911 communications antenna. …

The developer is petitioning the commission for a permit overruling local rules, as it appeals the zoning decision in court.

In filings with the commission, Allegany officials say they don’t necessarily even oppose the wind project. But they “vehemently” object to what a lawyer for the county calls “efforts to circumvent Allegany County’s land use and zoning authority.”

MACo Legal and Policy Counsel Les Knapp stressed that counties generally support renewable energy and other types of “dispersed” energy generation technology like gasification, but that they should not arbitrarily disrupt long term county plans for growth and land preservation. Instead they should be part of that long term thought-out framework:

The Maryland Association of Counties is preparing policy proposals for the 2017 legislative session in Annapolis aimed at settling such conflicts.

“I think what we would look for is a simple acknowledgment that these types of facilities should be subject to local zoning,” said Les Knapp, legal and policy council for MACo. “Their location should be considered and in line with how counties are growing and developing.”

Reaction from energy companies has been mixed to the MACo proposal and county concerns and the article summarized several viewpoints:

David Friend, Laurel’s CEO, says the state authority is key because any change or extra hurdle imposed at the county level could chill the development of new projects.

“These development processes take a long time,” he said. “If they change the rules, you’ll never build another power station or power line in Maryland again.” [Author’s Note: MACo is not questioning the authority of the state to cite traditional large-scale power plants or transmission lines.] …

Solar industry officials said they want to cooperate with local communities as they seize new opportunities.

“The industry is really willing to work with the counties,” said Dana Sleeper, executive director of the Maryland Solar Energy Industries Association. “Folks get a little bit scared when there’s something new.”

The article also provided an overview of New Jersey’s recent incentive-based approach to encourage solar development on brownfields.

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