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Maryland High Court Finds State Authority to Approve Renewable Energy Projects Preempts Local Zoning Authority

The Maryland Court of Appeals has unanimously held that the Maryland Public Service Commission’s authority to approve the construction and siting of energy generating systems preempts local zoning authority: “Ultimately, the final decision regarding whether to approve a generating station lies exclusively with the [Public Service Commission].” Washington County v. Perennial Solar, LLC, --- A.3d ----, 2019 WL 3071755 (Md. 2019).

The controversy began when neighboring landowners sought judicial review of the Washington County Board of Zoning Appeals’ award of a variance and special exemption for Perennial Solar, LLC’s proposed ten-megawatt solar energy generating system on 86 acres of farmland. If constructed, the facility would generate enough electricity to power 2,100 homes.

Under Maryland law, the Public Service Commission must undertake a detailed approval process for the construction and operation of most types of energy-generating stations by issuing a Certificate of Convenience and Public Necessity. In evaluating a proposed energy generating station, the Commission must consider a number of factors, including the views of the local governing body of the county or municipality in which the facility will sit. Smaller energy generating stations that produce a limited capacity or use a certain percentage of electricity generated on-site, such as residential solar installations, are exempt from this extensive approval process.

The Court determined that Maryland’s “all-encompassing statutory scheme” addressing renewable energy – which governs the siting and permitting of renewable energy facilities, the state’s renewable portfolio standards and greenhouse gas reduction goals, among other related topics – indicates legislative intent to occupy the entire field of renewable energy regulation. Further, the Court relied on local government’s well-defined role in the Public Service Commission review process as evidence of legislative intent to preempt local government’s zoning approval authority over generating stations.

As states continue to adopt increasingly aggressive renewable portfolio standards, prompting the development of more renewable energy projects, decisions like this will help clarify the role that local governments can play in the siting and development of renewable energy projects.

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 205

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About this Author

Brook Detterman Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Principal

Brook's practice focuses on climate change, renewable energy, and environmental litigation.

Brook helps his clients to navigate domestic and international climate change programs, develop renewable energy projects, and generate carbon offsets.  He helps his clients to negotiate, structure, and implement transactions related to carbon offsets and renewable energy, and works with clients during all phases of renewable energy and carbon offset project development.  Brook also represents clients during complex environmental litigation, having served as litigation and appellate counsel...

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Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Hilary maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors.

She joined the Firm following her graduation from the University of Maryland Francis King Carey School of Law (UM Carey Law). 

While at UM Carey Law, Hilary served as a law clerk in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Water Enforcement Division, and served as Articles Editor for the Maryland Law Review. She also worked in the University of Maryland’s Environmental Law Clinic to assist a Baltimore community prevent an environmentally harmful development in their neighborhood, and received the Community Scholar Prize for her significant contributions to this work. As a part of her work at the Clinic, Hilary also co-authored a report documenting environmental justice issues in the state of Maryland. She was also selected to present a paper on creative climate change litigation strategies for small island nations at the 11th Annual Colloquium of the International Union for Conservation of Nature’s Academy of Environmental Law. 

While earning her undergraduate degree in Environmental Studies, Hilary was selected as student representative for the Washington University Delegation to the 17th Conference of the Parties to the United Nations Framework Convention on Climate Change. She also served as a student consultant at Washington University’s Environmental Law Clinic.

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