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.

Beveridge & Diamond's Renewable Energy industry group supports and enables successful and sustainable renewable energy projects, helping clients overcome a number of environmental regulatory and transactional hurdles. We help developers, energy companies, manufacturers, and other participants with issues such as construction and land use impacts, endangered species, stormwater management, hazardous materials, and waste. For more information, please contact the authors.