Judicial and administrative decisions regarding specific utility-scale solar projects can inform local governments about the components of solar facility siting ordinances that may be challenged.
This website characterizes the Department of Natural Resources Power Plant Research Program (PPRP) joint secretarial letters and associated project assessment reports and licensing conditions as administrative decisions, although ultimately the Public Service Commission (PSC) gives the final approval on issuing a Certificate of Public Convenience and Necessity (CPCN) and associated licensing conditions. The PPRP materials provide local governments with the consensus position of seven state agencies concerning particular utility-scale solar projects.
As of June 2022, the following judicial and administrative decisions are the most relevant for local governments to consider:
Judicial Decisions
Maryland Court of Appeals Decision in Board of County Commissioners of Washington County, Maryland v. Perennial Solar, LLC. Washington County - July 2019. The Maryland Court of Appeals held that the PSC is the ultimate authority in siting utility-scale solar projects under the Public Utilities Article §7-207 through implied preemption (one of two ways a court can find that the General Assembly has preempted an area of the law.) Although Maryland law does not explicitly indicate that the state has this authority, the court ruled that this authority is implied after considering multiple factors. The case involves an 86-acre solar project (~10 MW) in Washington County proposed by Perennial Solar, LLC.
- For more details on the case and its potential impact to local solar facility siting efforts, please see: conduitstreet.mdcounties.org/2019/07/19/court-of-appeals-holds-solar-siting-decisions-are-made-by-the-state-not-by-local-zoning/.
- The court decision can be found at:
courts.state.md.us/data/opinions/coa/2019/66a18.pdf and includes the following conclusion: "[The Public Utilities Article] § 7-207 preempts by implication local zoning authority approval for the siting and location of generating stations which require a CPCN. The statute is comprehensive and grants the PSC broad authority to determine whether and where [solar energy generating systems] may be constructed. Local land use interests are specifically designated by statute as requiring "due consideration" by the PSC. This includes the recommendation of the governing body of each county or municipal corporation in which any portion of the construction of the generating station is proposed to be located, as well as due consideration by the PSC of the consistency of the application with the comprehensive plan and zoning for the respective local jurisdiction. Under the plain language of the statute, local government is a significant participant in the process, and local planning and zoning concerns are important in the PSC approval process. However, the ultimate decision-maker is the PSC, not the local government or local zoning board. Although local zoning laws are preempted and therefore not directly enforceable by the local governments as applied to generating stations such as [solar energy generating systems], they are nevertheless a statutory factor requiring due consideration by the PSC in rendering its ultimate decision."
- The PSC has not yet made a decision regarding the CPCN.
- To track the progress of the particular utility-scale solar project in question as it makes its way through the CPCN process, see PSC Case Number 9408: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
Administrative Decisions
Regarding natural resource protection requirements:
PSC decision regarding forest afforestation in CPCN licensing conditions for Big Spring Solar, LLC. Washington County - September 2017. The PPRP joint secretarial letter and associated licensing conditions requested afforestation for the development of a 3.5 MW utility-scale solar facility on farmland to implement the state-level Forest Conservation Act. The PSC disagreed and decided (through the Public Utility Law Judge's final order) that the project did not require forest afforestation because the project already complied with the county-level forest conservation ordinance (the local Board of Zoning Appeals exempted the project from mitigation requirements).
- For more details on the case, including the PPRP joint secretarial letter and associated licensing conditions, and the Public Utility Law Judge's final order, see items 26 and 43, respectively under PSC Case Number 9402 at: www.psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
Regarding consistency with local government plans and interests:
PSC decision to deny a CPCN for Mills Branch Solar, LLC. Kent County - February 2017. The PSC (through the Public Utility Law Judge) denied the CPCN for a 60 MW utility-scale solar facility, focusing especially on opposition from the county. The Public Utility Law Judge:
- Agreed with the county that the project was contrary to the local zoning requirements and with the county's assessment of the following impacts of the project: "...the loss of prime farm soil from crop production, the negative impact upon the viewscape, the harm to the tourist industry, the negative effect on historic sites and the Heritage Area, as well as the loss of local control over the type and location of industrial sized solar farm development in the County."
- Found 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," and that the proposed licensing conditions for the project were "...inadequate to mitigate the negatives created by the location."
- Determined that "...local opposition was based upon a reasonable application of land use policies that are based upon the local knowledge of what is the best policy for the citizens of [Kent County]. Local control over the amount, location, and type of development must be respected by the Commission 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 [his] decision to deny the Application."
- For an overview of the case, please see conduitstreet.mdcounties.org/2017/01/13/psc-utility-law-judge-denies-controversial-solar-project-in-kent/
- To review the Public Utility Law Judge's final order, see item 91 under PSC Case Number 9411 at: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
- Note that the PPRP joint secretarial letter (May 2016) noted that in the "...[r]uling on Kent County's motion regarding County zoning, the Public Utility Law Judge noted that the Applicant has the burden to demonstrate that its proposal is in the public interest of the state, despite the opposition of the local county. The State agencies take no position on this question as it does not fall under the legislative requirement to assess project environmental and socioeconomic impacts, and defer to the localities to determine whether commercial scale solar is the best use of agricultural land." See item 73 under PSC Case Number 9411 at: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
PSC decision to grant a CPCN for Biggs Ford Solar Center, LLC. Frederick County – November 2020. The PSC’s Public Utility Law Judge (PULJ) granted the CPCN for the following reasons:
- “the benefits of the Project and its contribution to the State’s Renewable Portfolio Standard (RPS) outweigh the Project’s inconsistency with both the County’s and the Town’s Comprehensive Plans (“CP”). A project’s consistency with the respective jurisdiction’s CP is but one of many factors that must be evaluated pursuant to Public Utilities Article, Annotated Code of Maryland (“PUA”) § 7-207” (August 27, 2020 Proposed Order).
- “Frederick County’s Commercial Floating Zone District constituted a de facto ban on utility-scale solar facilities. Although the Chief PULJ noted that exercising the Commission’s authority to pre-empt the County’s zoning ordinance should not be taken lightly, he concluded that the record in this case supports the exercise of pre-emption because doing otherwise would ‘create a dangerous precedent throughout the State’ and ‘make achieving the RPS’s increased goal of 14.5% solar renewable energy by 2030 completely unrealistic.’” (November 24, 2020 Order Denying Frederick County’s Appeal).
The PSC’s Public Utility Judge denied Frederick County’s appeal for the following reasons:
- “the Commission must conduct a multi-faceted review, including giving “due consideration” to the recommendations of the local jurisdiction in which the generating station is to be developed. However, Maryland law is clear that the Commission is not bound by these recommendations, but must consider them alongside various other local and statewide factors.” (November 24, 2020 Order Denying Frederick County’s Appeal).
- “The Commission also affirms the Chief PULJ’s decision to rely upon the statewide RPS targets in evaluating whether to approve the Application. Although the RPS is not listed as one of the factors in PUA § 7-207(e), these listed factors are not exclusive.” (November 24, 2020 Order Denying Frederick County’s Appeal).
- “in Perennial, the Court of Appeals recognized the link between the Commission’s CPCN process and the goals of the RPS, concluding that ‘consistent with the PSC’s duties to ensure compliance with the RPS, including the specific targets for the share of electricity coming from solar electric generation, the General Assembly has also delegated to the PSC the exclusive authority to approve generating stations in Maryland.’ As noted above, after giving ‘due consideration’ to the County’s zoning ordinance, the Commission concludes the Chief PULJ properly determined that the ordinance created an unacceptable hurdle to complying with Maryland’s RPS.” (November 24, 2020 Order Denying Frederick County’s Appeal).
- For the PSC’s Public Utility Law Judge’s proposed order and denial of the Frederick County appeal, see items 125 and 131, respectively, under PSC Case Number 9439 at: psc.state.md.us/(search by Case/Docket No. in the Case Search engine).
PPRP decision to recommend denial of a CPCN for Biggs Ford Solar Center, LLC. Frederick County - September 2019. The PPRP joint secretarial letter recommended that the PSC deny a CPCN for a 15 MW utility-scale solar facility for four reasons: (1) county opposition to the project and opposition from an adjacent municipality; (2) location within the county's Priority Preservation Area (under the Agriculture Article §2-518), as described within the county's comprehensive plan; (3) 100% of the project site is classified as prime agricultural land; and (4) the project is inconsistent with the county comprehensive plan.
- For the PPRP joint secretarial letter and associated licensing conditions, see items 95 and 106, respectively, under PSC Case Number 9439 at: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
PSC decision to grant a CPCN for Morgnec Road Solar, LLC. Kent County – April 2022. The PSC’s Public Utility Law Judge (PULJ) granted the CPCN for the following reasons:
- “In applying a statute such as PUA § 7-207(e), which contains multiple factors that must be weighed against one another, it is inevitable that some factors will not be fully and perfectly satisfied. Although the Commission strives to respect the preferences and enactments of local governments, the Commission has also repeatedly affirmed that due consideration and weighting of the § 7-207(e) factors favors mitigation of local impacts, rather than rejection, in order to allow otherwise well-supported projects that conflict with local zoning and planning to go forward.”
- “The Commission affirms the Proposed Order’s conclusion that the Kent County land use regime unreasonably restricts the placement of solar generating facilities. The Local Interests’ implied suggestion, that issuance of a CPCN should only occur where all other possible projects on other pieces of land whose locations may be preferable to the local authorities have been fully examined and rejected as infeasible, would create an impossible regulatory burden both for applicants and the Commission. Local governments should make a good faith effort to accommodate realistic utility-scale solar development, in which case the Commission will give greater weight to local preferences to exclude utility-scale solar from specific areas.”
- “…the Commission also affirms the Proposed Order’s finding that the Project will not unreasonably interfere with likely growth of Chestertown during the Project’s lifecycle. The PULJ considered the testimony of local witnesses about future growth plans, including the designation of a Priority Funding Area as indicative of local intent to locate future development in that area. The PULJ’s findings regarding the likely growth needs of Chestertown, and the availability of land to accommodate that growth, are reasonable and supported by the record. Moreover, the Proposed Order’s conditions requiring decommissioning and removal of the Project are well constructed and will ultimately open that land up to further urban expansion, as requested by the Local Interests.”
- “PPRP also argues that this case is not comparable to Mills Branch Solar because in that case the Commission concluded that the weight of the opposing parties’ evidence was significant as to the project’s negative impacts on the local agricultural economy and on the viewshed, factors not present in this case…[t]he Commission finds that this case does not closely analogize to the decision in Mills Branch Solar for the reasons articulated by PPRP.”
- For more details on the case, including the PSC order, PPRP joint secretarial letter and associated licensing conditions, see items 45 and 124 under PSC Case Number 9499 at: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
PPRP decision to support the CPCN for Morgnec Road Solar, LLC. Kent County - December 2019. The PPRP joint secretarial letter noted opposition of the project by the county, adjacent municipality, and local citizen and community groups. The PPRP joint secretarial letter did not recommend denial of a CPCN for a 45 MW utility-scale solar facility, noting the following: (1) the project would occupy land currently used for agricultural production; (2) the land in question is designated as a future growth area by the county and by the adjacent municipality; (3) the goal is for the applicant, county and town to reach agreement regarding the project's operation for a finite period of time while accommodating future growth of the adjacent municipality; (4) the PPRP's recommended licensing conditions #3 and #31 provide for the expiration of the CPCN upon the PSC's determination that it is in the public convenience and necessity that the project be decommissioned to allow for the growth of the adjacent municipality, consistent with the comprehensive plans of the county and the town.
- For more details on the case, including the PSC order, PPRP joint secretarial letter and associated licensing conditions, see items 45 and 124 under PSC Case Number 9499 at: psc.state.md.us/ (search by Case/Docket No. in the Case Search engine).
