Growing maze of state, local laws challenging Biden's green energy push
By Steve Miller
Real Clear Wire
Grassroots resistance to the Biden administration’s ambitious push for a “zero-carbon” economy is coalescing in varied new state laws and local ordinances that threaten to bog down solar and wind development in a multi-front legal and regulatory war on a scale not seen before.
Until recently and with few exceptions, squabbles pitted loosely organized local residents against renewable developers, with an average of two major projects a month facing protests and legal action in mostly rural areas, according to a database of renewable rejections compiled by Robert Bryce, a former fellow at the conservative Manhattan Institute.
But the escalation of local protests has gradually drawn more elected officials into the fray, with new laws and regulations auguring ever-varying multi-dimensional contests at the federal, state, and local levels to gain approvals, often involving international players:
Laws passed in Ohio and Kansas in 2021 and 2022, respectively, give stronger input to towns and villages that are often the target of well-heeled power companies seeking to use rural land to construct large-scale renewable energy projects.
In Michigan, a group called Michigan Citizens for the Protection of Farmland plans a ballot proposal that would ban large-scale solar farms on agriculturally zoned land across the state, combating a strong renewable lobby in the Democrat-controlled state.
In Maine, lawmakers heeded the formidable fishing lobby and passed a law in 2021 banning wind farms in state waters off the coast.
In the crucial early primary state of Iowa, where farming interests are powerful, opponents are pursuing legislation halting solar plants on land suitable for agriculture within 150 feet of a neighboring property. The bill was introduced earlier this year but did not move past subcommittee approval.
Meanwhile, lawmakers in 12 states, including Republican strongholds Florida and Iowa, have passed measures that limit or remove local control of renewable projects, handing more authority to the state.
“States get to set their own energy policy,” James Coleman, a law professor at Southern Methodist University in Dallas, told RealClearInvestigations. “For example, New York has left a lot of money on the table with natural gas because it doesn’t like fracking, and the federal government has allowed that.”
Renewable advocates, though, have supported federal intervention ranging from overriding state laws to loosening endangered and threatened species protections to expedite permitting for solar and wind.
“We need to replace all fossil fuels plants with renewables … so my suggestion is that we need some kind of federal intervention for that,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. “I think it is possible given the magnitude of the need.”
There’s little question that states and towns are chafing at the rush to development and full deployment of wind and solar.
“Our county is under assault,” Bill Hicks, a resident of Franklin County, population 10,000, in east Texas, said at a March hearing in Austin for a proposed legislative measure that would give more power to Texas landowners who resist renewable energy developers.
Hicks noted six pending solar plants, adding: “Folks, one of them is 5,000 acres and stretches for nine miles along a highway.”
Opponents of the Texas bill represented interests from as far away as Norway and Spain, with billions of dollars in revenue and investments from multi-national corporations.
“This is an anti-renewable energy bill,” one opponent, Jeff Clark, president of the Advanced Power Alliance, an advocacy group for an international consortium of renewable producers, said in written testimony. “Senate Bill 624 is designed to stop renewable energy development … everywhere in Texas.”
Conflicts over renewable source placement from Vermont to Nevada have put locals at odds with the Biden administration’s dream of a carbon-free electric sector by 2035 to combat a “climate crisis” that it claims is driven by fossil fuels.
Regulations on renewable plant siting vary widely by state, ranging from a hybrid of local and state authority to outright local or state control. State approval is required of most any energy project, be it oil, gas, wind, or solar. Some states require additional scrutiny of projects over a specified size, while others apply uniform standards regardless of scope.
While 31 states have adopted requirements that a percentage of electricity come from renewable sources in the future, where the plants for this electric generation are situated largely rests with private developers, noted Gerrard of Columbia University.
“They will decide where to buy and rent the land and where it will work the best,” Gerrard said. “Private developers are very good at that, and it is subject to government approval.”
Opposition has a strong element of so-called NIMBY-ism, an acronym for “not in my backyard,” and both sides have turned to the courts on some occasions, with mixed results.
Local opponents cite some of the same arguments used against the oil industry for decades: Development means the potential loss of farmland, the impact of developing roads and infrastructure on the environment, and water runoff that endangers the water supply.
“A big part of this tears communities apart,” said Jack Van Kley, a Columbus, Ohio-based attorney who has represented groups of residents opposing solar and wind developments. “It becomes a green energy civil war in some places.”
With the heft of state law giving these citizens broader say in locating projects on large tracts of wilderness or farmland, energy companies will have to be more diligent when selecting locations.
The corporations say large tracts are ideal for siting solar and wind farms close to transmission conveyances, and therefore more profitable.
“They also want an area with flat ground, which often means farm ground,” said Van Kley, the Ohio lawyer, whose clients are mostly farmers.
Connie Ehrlich has staved off solar development in Pulaski County, Indiana, for three years with a tenacious fight that has included lawsuits, social media blitzes, and overtures to state leaders for help.
But Indiana’s political leadership has not cooperated. “They’re all in on solar,” she said, including the state’s Republican Gov. Eric Holcomb, who joined executives from Israeli-owned Doral Renewables at a solar plant groundbreaking last year in Pulaski County. Even the Indiana Farm Bureau, which is supposed to represent farmers in such situations, “has been a real disappointment,” Ehrlich said. “They have been more involved with solar developers than us, hosting events with them. It will cost them membership.”
In the state legislature, Indiana Republicans proposed taxpayer-funded payouts to municipalities that allow solar and wind farms. But residents are outspoken against them: “This bill would take our own Indiana taxpayer dollars and offer them back to us as a bribe,” Judith Noll, a resident of rural Whitley County, told legislators during a hearing on the measure.
Indiana Farm Bureau President Randy Kron and Vice President Kendell Culp – also a state representative whose political donors include out-of-state solar industry entities – did not respond to interview requests.
Utility siting, be it for fossil fuels or renewable energy, is a political art with huge stakes that has yet to be perfected.
The issue has been studied for decades, starting with the designation of land for oil and gas exploration, and is decried for the alleged potential of groundwater pollution. Nuclear facilities are disparaged for the possibility of meltdowns and leaks.
Today, objectors look at renewables as a danger to the environment from consuming valuable agricultural or recreational land. Solar developers have flocked to the hinterlands of Nevada, with flat tracts of sunny land viewed as the perfect landscape for vast panel arrays.
The area is even more attractive because most of it is federal property, controlled now by an administration foisting billion-dollar breaks on the renewables industry. In July, Warren Buffet’s NV Energy bought 7,200 desert acres from the feds for $82 million in an auction. The land, set to be covered with solar panels, is close to the town of Beatty, Nevada, which leverages its proximity to Death Valley National Park as a recreation and tourism draw.
The town’s leaders fear that even though Beatty has so far managed to stave off largescale solar development, the new land deal 11 miles south is a dark portent.
“When NextEra Energy came to the town and wanted to put a facility in, they asked us, ‘What do you want?’” said Erika Gerling, who chairs the Beatty Town Advisory Board. “They offered to build some big fancy visitor center thing, but we don’t want any of that. We want to have our own economy.” NextEra wanted to build a 3,000-acre solar plant that would go right up to the entrance to Death Valley, on a scenic desert-scape that defines the region’s stark natural beauty.
To fight large corporate interests, “people have to stand up and be strong and be outraged,” said Gerling, who has been pleased by the support of two Democratic state senators, Jacky Rosen and Catherine Cortez Masto. “It’s one thing if I write a letter for the advisory board but another when 100 citizens from the town come out to talk about it.”
Several of the major renewable corporations, including NextEra and Invenergy, did not respond to requests to speak about their siting policies.
Several communities in Michigan have passed moratoriums on solar development, some under a 1974 law that allowed farmland to be protected by the state for a specified period ranging up to 90 years. But Michigan Gov. Gretchen Whitmer ordered the statute amended in 2019, allowing solar panels to be placed on the protected land. A spokeswoman for the state of Michigan did not respond to emailed questions on the Democratic governor’s action.
Her order rankles some members of the state’s farming community, who are working on a ballot proposal to protect farmland.
“Making sure these renewable projects are done right is about protecting the country, and at the end of the day we have to protect our farmland,” said Erin Hamilton, who is leading an effort to enforce Michigan’s protection of agricultural land. “Look at history, and any civilization that has gone under … One of the things that broke it is that they lost control of their food supply.”