Understanding Land Use & Energy Permitting
State and local laws primarily regulate decisions about how and where we build electricity infrastructure, including new solar arrays.
While the federal government is involved in the siting of natural gas, hydroelectric plants, and certain transmission infrastructure, it has no authority whatsoever over the siting of solar arrays on private land. Rather, local cities and towns usually exercise their fundamental police powers over solar array land-use and siting decisions, in very different manners. In addition, a significant subset of states have established a state process for siting solar arrays and other energy generation infrastructure, which may override or legally preempt the exercise of traditional local land use authority.
The administrative permitting process for solar development governs the size, location, and design of solar arrays that may be constructed in any given area, including on farmland.
Policymakers can design permitting requirements designed to fast-track low-impact projects, increase oversight of large-scale arrays, preserve agricultural land uses, and ensure farmer access to clean energy.
Note: Solar facilities proposed for construction on federal land fall within the jurisdiction of the agency charged with the land’s management, most often the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) or the U.S. Department of Agriculture’s Forest Service.
State land-use and energy permitting policies include all the necessary steps required to obtain approval to install a solar array.
Permitting policies differ from state to state, and may require submission of a single application to a state-level siting board or separate approvals from state public utility commissions and municipal-level planning, zoning, and conservation boards. The process usually includes submission of application materials detailing project characteristics, including facility size, generating capacity, land-use footprint, potential impacts to neighbors, aesthetics, interconnection with the electric grid, environmental or agricultural impacts, and decommissioning plans.
“Although the states are constrained by the Supremacy Clause and the Dormant Commerce Clause, it should be taken as a given that states have power to consider the environmental, economic, or other police-power-related implications of electricity generation within their borders.”— Emily Hammond, The Energy In-betweens, 59 Jurimetrics J. 167, 175–76 (2019)
A state or municipal permitting authority reviews the proposed project for compliance with regulatory criteria and may place conditions on the project before issuing a land use or energy permit.
Multiple permits may be required, and proposed solar arrays may need to participate in more than one permitting process in front of different authorities to obtain final approval to construct and operate the solar array. Generally speaking, larger projects with greater potential environmental impacts are likely to trigger more permitting requirements.
Energy permitting refers to permission to build and operate an energy generating plant specifically, as compared to non-energy forms of land use development, like construction of a new building.
Many states require approval by a state public utility commission or state-level siting council for new energy generating facilities over a certain capacity size or acreage.
The public utility commission issues a certificate of approval (usually called a certificate of public good, public need or public convenience) to approve such facilities. Some states exempt small-scale distributed generating plants from the requirement to obtain a certificate of approval from the public utility commission, rather, these distributed generation plants are subject to a state or local land use permitting process that is not energy specific.
Public utility commissions exercise different authority under disparate state law in different states. State authority varies as to:
- Whether states exercise any authority power generating facilities;
- Whether such authority applies only to projects over a certain minimum size;
- Whether state authority applies only to projects of regulated monopoly utilities, or whether it also includes independent power generation companies; and,
- Whether states exercise preemptive legal authority over otherwise local land-use decisions.
Siting, land use, and environmental approvals might be consolidated into a single approval from the public utility commission or a state siting council.
When a public utility commission issues a consolidated certificate of approval, the process may include trial-like regulatory hearings with submission of evidence and expert testimony on issues including land use, siting, and environmental impact. Other state agencies may lend their expertise by reviewing proposed projects and providing input to the public utility commission as to whether conditions should be set on project approval.
OR, siting, land use, and environmental approvals might NOT be consolidated under public utility commission or siting council jurisdiction.
This means that proposed projects obtaining a certificate of approval from the commission still must obtain additional state or local land use, environmental, or siting approvals. In certain states, the public utility commission plays no role in the siting of new solar arrays.
Land Use Permitting
Traditional state land use development and environmental regulations are likely to apply to new solar installations, including review for compliance with state laws regarding wetlands, endangered species, other protected natural resources, storm water run-off, land disturbance, surface and ground water quality, shoreline protection, agricultural protection, and erosion prevention.
Many states require approval by a state siting authority for new energy generating facilities over a certain capacity size or acreage. State siting authorities, like public utility commissions above, may be responsible for issuing a permit that consolidates state and local land use and environmental concerns.
Additionally, local zoning restrictions and land use ordinances are likely to apply to proposed solar arrays, and may require analysis of impacts to historic districts, aesthetics, setbacks, and review by a local zoning authority, planning board, and/or conservation commission.
As part of project siting, environmental impact review, and other permitting processes, there are also frequently requirements for public involvement including public hearings and community meetings, as well as opportunities for the public to submit comments to the permitting agency or agencies.
Compare: Division of State and Local Authority over Solar Siting
Criteria for Project Approval
Whether at the local or the state level, new solar arrays may need to submit documentation of project characteristics to a siting authority that evaluates some or all of the following criteria:
- Compliance with building and electrical codes
- Consistency with local land use planning and zoning
- Compliance with setback requirements
- Aesthetic evaluation
- Effects on wetlands and other natural resources
- Public health and safety
- Greenhouse gas impacts
- Effects on agricultural lands and soils
- Decommissioning standards
- Grid interconnection
- Energy system stability and reliability
- Consistency with state energy needs
State Direction of Municipal Permitting Processes
States may establish state-wide zoning provisions or require that local governments use a particular process in implementing planning and zoning laws that govern solar development.
For example, some states have enacted zoning preference laws that prevent the “unreasonable regulation” of solar development or declare solar to be a “beneficial use” within the meaning of their zoning laws. This can establish a presumption in a zoning process that the zoning permit should be approved for the solar project unless the zoning authority finds that the solar project is not a beneficial use. Other states have passed “solar easement” and “solar access” laws to help preserve access to land or light for solar energy generation.
Compare: State Direction of Municipal Authority Over Solar Land Use
Massachusetts provides that, “Zoning ordinances or by-laws adopted or amended pursuant to section five of this chapter may encourage the use of solar energy systems and protect solar access by regulation of the orientation of streets, lots and buildings, maximum building height limits, minimum building set back requirements, limitations on the type, height and placement of vegetation and other provisions.” M.G.L.A 40A § 9B (1985)
New Jersey’s Solar Easements Act provides that “any easement obtained for the purpose of exposure of a solar energy device shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements.” N.J. Stat. Ann. § 46:3-25 (1978).
Oregon mandates that “the installation and use on a residential structure of a solar photovoltaic energy system or a solar thermal energy system is an outright permitted use in any zone in which residential structures are allowed.” O.R.S. § 215.439 (2019).
Rhode Island municipalities were required to use the statewide solar energy permit application beginning on January 1, 2018. The statewide solar energy permit application is intended to “provide applicants with a predictable and universal process for obtaining a single permit from municipalities that encompasses both building and electric permits for solar photovoltaic systems.” 300-RICR-00-00-3.
Nevada’s Planning and Zoning Act provides, “A governing body shall not adopt an ordinance, regulation or plan or take any other action that prohibits or unreasonably restricts or has the effect of prohibiting or unreasonably restricting the owner of real property from using a system for obtaining solar energy on his or her property.” NV Rev. Stat § 278.0208 (2019).
Application for Special Rate Eligibility
While this section addresses permitting processes for the siting of proposed solar arrays, developers may need to apply to take advantage of special rates established by the state for the purchase of solar energy. A developer’s eligibility for compensation through a state’s net metering program, feed-in tariff, or other procurement program depends on the criteria and application process required by state laws establishing these rates.
The application process for a given rate may be consolidated with the land use and siting process under the authority of a state public utility commission or may be a set of separate and additional criteria a proposed solar array must meet. See “Compensation for Solar Energy” for additional discussion of siting criteria found in special rates for renewable energy.
- Emily Hammond, The Energy in-Betweens, 59 Jurimetrics J. 167, 175–76 (2019).
- Solar facilities proposed for construction on federal land fall within the jurisdiction of the agency charged with the land’s management, most often the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) or the U.S. Department of Agriculture’s Forest Service. Projects under Federal jurisdiction are outside the scope of this report.
- Federal Regulatory Energy Commission, About FERC, What FERC Does Not Do, Updated August 14, 2018 available at http://www.ferc.gov/about/ferc-does.asp. FERC describes the limit of its own jurisdictional authority, leaving the local distribution of electricity and facility approvals as a responsibility reserved for the State Public Utility Commissions.
- Amy Wilson Morris & Jessica Owley, Mitigating the Impacts of the Renewable Energy Gold Rush, 15 Minn. J.L. Sci. & Tech. 293, 312 (2014).
- Monast and Adair, A triple Bottom Line for Electric Utility Regulation: Aligning State-Level Energy, Environmental, and Consumer Protection Goals, 38 Colum. Envtl. L. 1, 11 (2013).
- Siting approval for power generation, transmission and distribution lines, 2 L. of Indep. Power § 10:170, 2020.