pwr_october-2024 - 20

LEGAL & REGULATORY
How Local Opposition
Can Thwart Renewable
Energy Projects
Alex Prochaska and Meghan Smith
T
wo-thirds of Americans say that they support the development
of alternative energy sources such as wind, solar,
and hydrogen power. At least that's what the Pew Research
Center found in a nationwide survey conducted in early
June 2023.
So, it may come as a surprise to know that there has been a
strong, community-driven backlash against renewable energy
projects. According to a report published by Columbia Law
School's Sabin Center for Climate Change Law, between 1995
and 2023, nearly 300 renewable energy projects encountered
significant local opposition, with many of the projects delayed
or abandoned altogether.
More recently, during the period from March 2022 through
May 2023, 82 new controversies were reported. At least 228
local restrictions on renewable energy projects are currently in
place, along with nine state-level restrictions.
This discrepancy in public attitudes-and action-highlights
one of the biggest challenges facing proponents of renewable
energy production in the U.S. Despite high levels of agreement
that renewable energy is a public good, the powerful sentiment
" not in my backyard, " or NIMBY, remains as potent as ever.
Inflation Reduction Act Delivers a Boost
About one-quarter of the controversies noted above have
arisen since the final debates surrounding the August 2022
passage of the Inflation Reduction Act (IRA). The IRA included
significant federal government incentives for the development
of clean and renewable energy, clean fuels, carbon capture and
storage, and related technologies.
Despite the potential for these technologies to help federal
and state governments achieve their clean energy and carbon
reduction goals, local buy-in is essential if these projects are to
get off the ground. However, the evidence-even beyond that
noted above-points to growing opposition to these projects.
Texas Project Illustrates the Challenges
Renewable energy projects such as wind and solar do not, in
general, give rise to the same environmental pollution concerns
as traditional industrial projects. Despite that, they-along
with battery storage facilities and certain other chemicalsdependent
technologies-are nonetheless often the target of
not-insignificant community opposition. Among other strategies,
local municipalities are pursuing temporary or permanent
moratoriums, passing resolutions, supporting petitions to intervene
in permitting actions, and enacting land use plans that
regulate the development of commercial renewable projects.
In Texas, for example, the Franklin County Commissioner's
Court adopted an ordinance that placed a 180-day
moratorium on commercial solar energy projects. During
this time, the court was precluded from issuing any license,
road permit, or approval related to a commercial, utility20
scale
solar energy facility. The resolution relied on Section
251.003 of the Texas Transportation Code to provide authorization
for adopting the moratorium. The resolution stated
that the county had " compelling interest in protecting the
public health, safety, and welfare of its residents, visitors,
and business, and in preserving the agricultural heritage and
economy of Franklin County, Texas. "
The Texas Attorney General was asked to address whether
the adoption of the moratorium was within the scope of the
court's authority and whether it was enforceable. In a 2023
opinion, Provisional Attorney General Angela Colmenero concluded
that a court would likely find the moratorium was beyond
the court's authority as granted under the Transportation
Code or the Health and Safety Code provisions cited in the
opinion request.
Where local jurisdictions do not have pre-existing ordinances
or land use plans that address the siting of clean energy
projects, they may attempt to exercise control via special permits
that require local approval by the governing body. With
an unpredictable permitting process, opponents often have
an opportunity to delay a project. This uncertainty can create
stumbling blocks when pursuing project financing, as investors,
lenders, and other entities may be leery of putting
up money for initiatives for which the likelihood of obtaining
proper permits is in doubt.
Steps Toward a Brighter Future
As efforts to oppose renewable energy installations expand,
project stakeholders should take care to evaluate local regulatory
structures and the sentiments of local officials in places
where such projects are under consideration. Such efforts
should be undertaken before designing the siting of such projects,
and most certainly before making any public announcements
of intent.
A solid environmental impact analysis covering all resources
also should be conducted to identify any potential adverse
impacts of the project. If such potential adverse impacts are
found, project developers should proactively create a plan to
address these issues, with a particular focus on pre-empting
and withstanding any public or legal scrutiny.
Public outreach to proactively address the issues on environmental
impacts and aesthetics of the project also can help
mitigate local concerns that could ultimately affect state and/
or federal decisions on construction permits. Although these
steps do not guarantee the ultimate success of a renewable
energy project, they can go a long way toward improving its
chances of implementation. ■
-Alex Prochaska is special counsel in Jones Walker's Corporate
and Litigation practice groups in the Lafayette office. Meghan
Smith is a partner at Jones Walker, co-team leader of the firm's
environmental litigation team, and a member of the Energy, Environmental
& Natural Resources and Construction industry teams.
www.powermag.com
POWER | October 2024
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