PSC Utility Law Judge Denies Controversial Solar Project in Kent

A Kent County News article (2017-01-11) announced that a utility law judge for the Public Service Commission (PSC) has proposed denying the application for the Mills Branch Solar project in Kent County for a Certificate of public Convenience and Necessity (CPCN). The proposed order would effectively halt 60 mega-watt/370 acre project, which has generated local controversy. Kent argued that the project went against its zoning, which does include sites for utility scale solar projects. The project’s developer Apex Clean Energy, argued the PSC could preempt local zoning and that benefits of the project warranted the preemption. From the article:

In the 50-page opinion, Judge Dennis Sober wrote, “I find the evidence in support of the granting of a [CPCN] falls short of proving that the Project meets the standard of Public Convenience and Necessity. I find that the weight of the evidence pertaining to the location of the Project is more negative than positive in its persuasive value of creating benefits to (Kent County) and Maryland.”

Sober said the testimony of witnesses from Keep Kent Scenic, a group formed to oppose the project, and the county government was more persuasive than those of the applicant, Apex Clean Energy of Charlottesville, Va. Opponents of the project cited the loss of farmland from crop production and the negative effect of the project on the viewscape and historic sites in the vicinity as reasons to deny the application.

Also, Sober wrote, the staff of the Maryland Public Service Commission “under-valued the importance of the opposition of the local government.” He said the county’s opposition was based on “a reasonable application of land use policies” that are based on local knowledge and experience.

Sober wrote, “Local control over the amount, location, and type of development must be respected by the PSC when there is no weight of evidence of need or benefit to outweigh the local opposition. The weight of the evidence of harm being caused, if the project is built, was significant and was a major factor in my decision to deny the application.”

However, Sober’s proposed order reiterated that the PSC does have the authority preempt local zoning:

On April 26, 2016, a hearing on pending motions was held….In ruling on Kent County’s Motion, I found that the authority of the Commission does preempt the application of the [Kent County] land use ordinance. Therefore, [Kent County’s] Motion for a denial of the application was denied.

The Kent Count News article also included a reaction from Apex:

Apex released the following statement in response to Sober’s ruling: “Though we’re disappointed with the Proposed Order, we still believe Mills Branch Solar is a great project for Kent County and Maryland. Solar energy is good for the economy and good for the environment. This project can provide enough energy to power 10,000 homes, while offering local economic benefits and cutting harmful emissions. We appreciate the letters of support that have been submitted by over 100 Kent County residents, and we appreciate the unanimous support of the neighbors adjacent to the project. We believe that advancing Maryland’s progress toward its renewable energy goals has many benefits, and we’re currently reviewing our options and will provide more information when the time is appropriate.”

The proposed order does not become final until February 10. Before that time: (1) any party that was part of the proceeding may appeal; or (2) the PSC may modify or reverse the order or initiate further proceedings in the matter. Addressing the issue of PSC preemption of local zoning in light of changing energy generation technologies is a 2017 MACo Legislative Initiative. MACo will be introducing legislation shortly to give local zoning greater weight in the PSC siting process.

For further information on MACo’s proposal, please contact Les Knapp at 410.269.0043 or lknapp@mdcounties.org.

Useful Links

Proposed Order of PSC Utility Law Judge for Mills Branch Solar Project

Prior Conduit Street Coverage of Mills Branch Project

MACo 2017 Legislative Initiatives