CB55-2019 – The Maryland Court of Appeals Ruled That Counties are Preempted Regarding Solar Energy Generating Systems Requiring a Certificate of Public Convenience and Necessity and Whether the Preemption Will be Extended to Community Solar Energy Generating Systems

In July 2019, the Maryland Court of Appeals ruled in Washington County v. Perennial Solar that local land use authority was preempted by PU § 7-207 for solar energy generating systems requiring a certificate of public convenience and necessity (CPCN) from the Public Service Commission (PSC). Though the bill sponsor is aware of this court opinion, the failure to recognize it within the text of CB55 gives the legislation the imprimatur of legal sufficiency, authority, and practical effect which it does not deserve.

In its conclusion, the Court of Appeals stated:

PU § 7-207 [Generating stations or transmission lines — General certification procedure] preempts by implication local zoning authority approval for the siting and location of generating stations which require a CPCN [Certificate of Public Convenience and Necessity]. The statute is comprehensive and grants the PSC broad authority to determine whether and where SEGS (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 SEGS, they are nevertheless a statutory factor requiring due consideration by the PSC in rendering its ultimate decision.

Comments during the public hearing, especially those from the bill sponsor, regarding solar regulations in other counties expressed an apparent naive understanding of a legacy of pre-Perennial Solar jurisprudence in a post-Perennial Solar world. In addition, those waiting for the State Task Force fail to recognize that its recommendations for siting will be made post-Perennial Solar. These sediments are reflected in a MACo article discussing the import of the Court’s ruling:

More Aggressive Solar Developers: The Court’s holding could embolden some solar developers to minimize or even ignore local government zoning and land use concerns. The PSC becomes the main backstop in protecting local government interests against developers who fail to work with local governments.


https://conduitstreet.mdcounties.org/2019/07/19/court-of-appeals-holds-solar-siting-decisions-are-made-by-the-state-not-by-local-zoning/

Community SEGS do not require a CPCN from the PSC, but instead have a separate regulatory scheme. While the community solar legislation does not include the participation of the local government in the approval process or the legislative history relied upon by the Court, it does include a stated legislative intent regarding climate change referencing the State’s renewable energy portfolio standard and the Greenhouse Gas Emissions Reduction Act which were discussed by the Perennial Solar Court.

The community solar is a pilot program which runs through 2024. One of the secondary factors the courts use in determining whether a local law is preempted by implication include whether it “would engender chaos and confusion.” The PSC is to study community solar during the pilot. If multiple counties were to place moratoriums on community solar, it could frustrate the pilot program’s capacity and geographic determinations as established by the PSC, or even the ability of the pilot study to successfully continue.

Determining whether counties are preempted in imposing a moratorium on community solar might very well be the lawsuit in which Howard County is the defendant as it is forced to defend CB55. The County has made climate change a major policy initiative as expressed by joining We Are Still In and by being the only government body to take the Natural and Working Lands Challenge. Litigation challenging CB55, could be costly, time consuming and and counter productive to these efforts. One of the court opinions relied upon by the Court of Appeals was the case of Howard County v. Potomac Electric Power Co., (1990) “preempted by implication county zoning ordinances regulating the location and construction of overhead transmission lines in excess of 69,000 volts.” Howard County need not be the party to a second major case in this electric power preemption area.

The Council should vote NO on CB55-2019.