Public Service Commission Role and the Certificate of Public Convenience and Necessity
Unless an exemption is received pursuant to Public Utilities Article, Section 7-207.1, applicants for energy generation facilities, including utility-scale solar facilities, must seek and obtain a Certificate of Public Convenience and Necessity (CPCN) from the Maryland Public Service Commission (PSC). Under Maryland law (Public Utilities Article, Sections 7-207 and 7-208, and Natural Resources Article, Section 5-1603(f)), the PSC must give due consideration to the following factors when making CPCN decisions:
- Recommendation of the governing body of each county or municipal corporation in which any portion of the project is proposed to be located.
- The effect of the proposed project on:
- the stability and reliability of the electric system;
- economics;
- aesthetics;
- historic sites;
- aviation safety;
- air and water pollution; and
- availability of means for timely disposal of wastes produced.
- The need to minimize the loss of forest and the provisions for afforestation and reforestation.
The PSC must also consider:
- The recommendation of the local governing body on the proposed project;
- The consistency of the project with the local government's comprehensive plan and zoning; and
- The efforts of affected parties to resolve issues presented by local governments.
The PSC makes CPCN decisions through a formal adjudication process. The process generally includes
the assignment of a public utility law judge (on delegation by the PSC), data requests, testimony,
hearings, and legal briefs. Ultimately the PSC makes its decision through a formal order, which includes
licensing conditions. Under Maryland law, several organizations are automatically parties to the
proceeding, including the Maryland Department of Natural Resources (DNR) Power Plant Research
Program (PPRP); however, a local government must petition the PSC to become an intervening party.
The PSC will consider testimony from official parties to the proceeding and other documents entered
into the record. The PSC may also consider written comments that are submitted as well as
comments received at public hearings.
Importance of Being an Intervening Party
To become an intervening party, a local government should file a petition to intervene with the PSC - pursuant to Public Utilities Article, Section 3-106, see
petition, or pleading, is signed by individuals who represent the local government (for example, the
county commissioners) and their legal counsel; (2) the pleading describes the local government's
interest in the case involving the solar facility; and (3) the pleading indicates that no other entity can
represent the local government's interest. Examples of petitions to intervene can be found on the PSC
website, including:
Becoming an intervening party can be helpful for ensuring that a local community's views, concerns and
interests are heard and included in case proceedings involving a solar facility. On the other hand, there
are also implications to becoming an intervening party, including staff and legal resource time needed to
prepare for and attend meetings and to respond to information requests related to the adjudication
process in a timely manner. This requires the local government to closely watch the PSC procedural
schedule to identify next steps and deadlines for each case. It only requires the local government to
ensure internal review and approval processes are completed by the required dates. Although
intervenors can request an adjustment to the PSC's procedural schedule, local governments must keep
in mind that the schedule is set to ensure fairness to all parties involved - this could mean that schedule
adjustment requests may be denied.
To become an intervening party in a timely manner, jurisdictions should remain aware of possible utility-
scale projects since solar developers might not always reach out to the local government until months
later in the development process. By PSC regulation, a CPCN applicant is required to provide the
governing body and planning and zoning commissions of each affected county and municipality with a
copy of the CPCN application. The applicant will typically publish notice of a pre-hearing conference
before the PSC, along with instructions for intervention, in a newspaper of general circulation in the
affected county. Additionally, jurisdictions should subscribe to the PSC mailing list -
regarding projects within their region.
Also, jurisdictions should establish a formal process (similar to processing a rezoning or site plan
application) through which the local governing body can develop its recommendation to provide to the
PSC on the CPCN, including information regarding the consistency with the local comprehensive plan.
Without a formal process, the local government's recommendation could be challenged as arbitrary and
capricious.
Role of the PPRP
PPRP coordinates the testimony and positions of seven state agencies (Agriculture, Commerce, Energy,
Environment, Natural Resources, Planning and Transportation) and is considered an expert witness for
environmental and socioeconomic analyses. PPRP completes a coordinated review of each utility-scale
energy generation project (and transmission lines greater than 69kV) for the PSC. The review includes a
joint secretarial letter with recommended licensing conditions, a project assessment report, and
supporting testimony. Making use of the input from the seven state agencies, the PPRP analyzes the
expected impacts of the utility-scale solar facility along with the facility's consistency with the local
comprehensive plan and zoning. Examples of impacts examined by the PPRP include:
- Biological impacts on water quality, wetlands, forests, wildlife and aquatic resources
- Economic and fiscal impacts, including job creation and protecting prime farmland
- Transportation impacts during construction
- After construction, impacts (such as glare) to passing cars and planes
- Visual impacts to neighboring properties
- Impacts to cultural, historical, and archaeological sites
- Water and sewer utility impacts
- Fire safety considerations
- Electromagnetic fields
- Decommissioning
Licensing conditions and permitting requirements
PSC licensing conditions, which are enforceable, can include a variety of measures, including a solar
decommissioning plan, conservation plan, vegetation management plan, and afforestation and/or
reforestation requirements. The licensing conditions can go beyond current legal requirements in order
to sufficiently mitigate for any harmful impacts. For instance, licensing conditions may also include
requirements for avoiding, minimizing, or mitigating adverse effects on historic properties (such as
documentation, landscape screening, and signage), based on consultation through PPRP's
environmental review process. In addition to the PPRP, PSC staff may recommend conditions that
address distribution system stability and reliability, and other parties also can propose licensing
conditions for the PSC's consideration.
As with all large-scale development projects, utility-scale solar facilities also must comply with federal,
state, and local laws to protect natural resources. This includes, for example, the Maryland Forest
Conservation Act, which requires minimizing forest loss and includes afforestation and/or reforestation
provisions, and Maryland's Critical Area Law, which limits land use impacts in areas within 1,000 feet of
tidal waters and tidal wetlands. The issuance of a CPCN is conditional upon the applicant obtaining all of
the necessary permits for natural resource protection. For example, if a natural resource protection
permit is denied for a utility-scale solar facility and is a condition for obtaining the CPCN, then the
project cannot move forward.
Additional Information
Figure 2,
List of Recent Solar CPCNs Considered, lists all solar Photovoltaic (PV)-related CPCNs considered by the
Maryland PSC over a five-year period according to 2015-2019 PSC annual reports (this list will be
updated each spring when the PSC annual report is published). As a general disclaimer, the document is
not intended to serve as guidance for preapproval of current or future CPCN applications (nor as
guidance for any disposition of specific issues related to solar facilities). The PSC reviews the facts and
merits of each CPCN Application on a case-by-case basis.
Additional information on the CPCN process for utility-scale solar facilities and the role of the PSC and
PPRP can be found at:
The PSC is an independent state agency. For specific questions related to the PSC CPCN review process, local jurisdictions and interested persons should contact the PSC directly.
Figure 1. The CPCN Licensing Process.
Source: DNR PPRP Comprehensive Environmental Impact Report
