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States are playing Whack-a-Mole against restrictive local laws.
Why don’t we build things?
Yale Law School professor David Schleicher, who studies local government and land use, has been trying to answer this question for years. While Schleicher typically writes about housing, his latest work — an essay literally called “Why Can’t We Build?” for the New York University Journal of Law and Liberty — is useful for thinking about why we don't have as much green energy infrastructure as we need. “Despite a generation of low interest rates and innovation in many non-physical realms,” he writes, “there are few physical monuments that we will pass to future generations — where are today’s Brooklyn Bridges or Hoover Dams?”
There are certainly explanations for this lack of infrastructural boldness. But more importantly, what are the reasons for it?
The explanations are often local restrictions on growth. When it comes to housing, that might mean zoning regulations that limit what kind of structures can be built where or fees that are sometimes charged to multifamily units. For renewable energy, developers of wind and solar might find themselves coming up against noise restrictions, rules that essentially require minimum amounts of land for installations, or even outright bans on certain types of generation.
But that doesn’t explain why these rules exist — the reasons why infrastructure doesn’t get built. As for these, he told me, most of them come down to the structural factors of local politics. “Statewide majorities have policy preferences” that often support development, Schleicher said. But local a body of government institutions that have been built up since the 1970s “have limited the capacity of those stated statewide preferences to be reflected in policy in many places.”
When it comes to zoning, Schleicher told me, proponents of reform “make arguments at the local level, but they’re very simply turning to the state level because the issue is larger than any individual jurisdiction.” The same goes for renewable energy.
If you ask people across an entire state if they want more housing or renewable energy, they will likely say yes. But local elections — which typically have comparatively low participation and are more likely to be decided on national party lines than on local policy issues — rarely reflect this political reality. With a lack of direct checks from the electorate, interest and advocacy groups have outsize weight on local policymaking.
Local governments have a variety of structures meant to discourage growth and systematically prioritize the views of those with the time and inclination to show up to local meetings — not just those who show up to vote every two or four years. Decisionmaking on individual projects may be dominated by homeowners or local environmental groups that don’t want to see any building or change in the built environment.
Statewide policymaking, on the other hand, “can bring different interest groups to the fore,” Schleicher told me, including labor and large employers. When Michigan, for instance, passed a suite of clean energy bills in 2023 with support from labor, it allowed the state to take over permitting for large clean energy projects if the applicable local rules are too restrictive.
California, too, has passed a series of laws centralizing renewable energy permitting and limiting the appeals that advocacy groups can make to block projects, which Governor Gavin Newsom has already put to work. Earlier this year, he essentially fast-tracked a 400 megawatt solar project in Riverside County by giving opponents just nine months to petition against its approval.
In all likelihood, however, Michigan will have to pass more new laws and regulations to speed up renewable development in any meaningful way. “Realistically, one of the other things that the zoning story has taught us that may be relevant for clean energy is that it's almost never does one law do the trick,” Schleicher told me. When states have tried to boost housing production, he pointed out, it has often required several rounds of legislation to get a meaningful boost in production as local opponents of new housing adapt to new laws.
California, again, provides a helpful example. The state is in the midst of a massive building boom in so-called accessory dwelling units, a.k.a. “granny flats” or ADUs. Housing advocates in the state credit this not just to a set of bills passed in 2016 preempting certain local regulations including setbacks, some parking requirements, and fees for utility connections that discouraged their construction, but also to 11 more bills passed by 2022, methodically clearing out local restrictions on building, renting, and selling ADUs.
And this was just the latest chapter in the effort to encourage the building of ADUs — the first bill trying to get around local bans in California passed in 1982. Forty years later, however, there were still only 1,000 permitted ADUs in the whole state. As of 2022, the state had registered 82,000 ADUs, a fifth of all housing produced in the state that year, according to CA YIMBY, a housing advocacy group.
"The first couple times statewide ADU bills were passed, local governments would come up with other ways to stop things," Schleicher said.
Something similar has and likely will continue to happen as states try to wrest siting for renewables projects from local governments. In New York, a 1972 law the governing the siting of power plants has gone through many different iterations. This law, known as Article 10, was changed in 2010 to apply to smaller generators and therefore include renewables projects. Article 10 created a “siting board” that could permit renewables projects under a fast-track process that exempted them from environmental impact statements required by the State Environmental Quality Review Act. The Board would even be allowed to waive “unreasonably burdensome” local laws restricting renewables development.
But the new process did little to speed permitting. What was intended to be a one- to two-year process instead turned “more lengthy and challenging than originally anticipated,” according to Massachusetts Institute of Technology researchers Lawrence Susskind and Anushree Chaudari. By 2018, Columbia University professor Michael Gerrard and then Arnold & Porter partner Edward McTiernan wrote, a single project had been approved under the new system.
New York passed a new law in 2020, which included fixed timelines for review. The new process, while relatively new, has managed to get some local rules on renewable siting thrown out as “unreasonably burdensome,” and opponents to wind and solar projects have lost out in front of the new siting board.
As New York state struggles to meet its ambitious goals for decarbonization, it will likely need to reform land use and permitting regulations again, and again, and again, along with every other state.
“Remember that you’re in a long fight instead of a short one,” Schleicher told me. “One of the most important things is to be able to pass successive bills because local opponents to statewide efforts are going to adapt and change and respond.”
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Almost half of developers believe it is “somewhat or significantly harder to do” projects on farmland, despite the clear advantages that kind of property has for harnessing solar power.
The solar energy industry has a big farm problem cropping up. And if it isn’t careful, it’ll be dealing with it for years to come.
Researchers at SI2, an independent research arm of the Solar Energy Industries Association, released a study of farm workers and solar developers this morning that said almost half of all developers believe it is “somewhat or significantly harder to do” projects on farmland, despite the clear advantages that kind of property has for harnessing solar power.
Unveiled in conjunction with RE+, the largest renewable energy conference in the U.S., the federally-funded research includes a warning sign that permitting is far and away the single largest impediment for solar developers trying to build projects on farmland. If this trend continues or metastasizes into a national movement, it could indefinitely lock developers out from some of the nation’s best land for generating carbon-free electricity.
“If a significant minority opposes and perhaps leads to additional moratoria, [developers] will lose a foot in the door for any future projects,” Shawn Rumery, SI2’s senior program director and the survey lead, told me. “They may not have access to that community any more because that moratoria is in place.”
SI2’s research comes on the heels of similar findings from Heatmap Pro. A poll conducted for the platform last month found 70% of respondents who had more than 50 acres of property — i.e. the kinds of large landowners sought after by energy developers — are concerned that renewable energy “takes up farmland,” by far the greatest objection among that cohort.
Good farmland is theoretically perfect for building solar farms. What could be better for powering homes than the same strong sunlight that helps grow fields of yummy corn, beans and vegetables? And there’s a clear financial incentive for farmers to get in on the solar industry, not just because of the potential cash in letting developers use their acres but also the longer-term risks climate change and extreme weather can pose to agriculture writ large.
But not all farmers are warming up to solar power, leading towns and counties across the country to enact moratoria restricting or banning solar and wind development on and near “prime farmland.” Meanwhile at the federal level, Republicans and Democrats alike are voicing concern about taking farmland for crop production to generate renewable energy.
Seeking to best understand this phenomena, SI2 put out a call out for ag industry representatives and solar developers to tell them how they feel about these two industries co-mingling. They received 355 responses of varying detail over roughly three months earlier this year, including 163 responses from agriculture workers, 170 from solar developers as well as almost two dozen individuals in the utility sector.
A key hurdle to development, per the survey, is local opposition in farm communities. SI2’s publicity announcement for the research focuses on a hopeful statistic: up to 70% of farmers surveyed said they were “open to large-scale solar.” But for many, that was only under certain conditions that allow for dual usage of the land or agrivoltaics. In other words, they’d want to be able to keep raising livestock, a practice known as solar grazing, or planting crops unimpeded by the solar panels.
The remaining percentage of farmers surveyed “consistently opposed large-scale solar under any condition,” the survey found.
“Some of the messages we got were over my dead body,” Rumery said.
Meanwhile a “non-trivial” number of solar developers reported being unwilling or disinterested in adopting the solar-ag overlap that farmers want due to the increased cost, Rumery said. While some companies expect large portions of their business to be on farmland in the future, and many who responded to the survey expect to use agrivoltaic designs, Rumery voiced concern at the percentage of companies unwilling to integrate simultaneous agrarian activities into their planning.
In fact, Rumery said some developers’ reticence is part of what drove him and his colleagues to release the survey while at RE+.
As we discussed last week, failing to address the concerns of local communities can lead to unintended consequences with industry-wide ramifications. Rumery said developers trying to build on farmland should consider adopting dual-use strategies and focus on community engagement and education to avoid triggering future moratoria.
“One of the open-ended responses that best encapsulated the problem was a developer who said until the cost of permitting is so high that it forces us to do this, we’re going to continue to develop projects as they are,” he said. “That’s a cold way to look at it.”
Meanwhile, who is driving opposition to solar and other projects on farmland? Are many small farm owners in rural communities really against renewables? Is the fossil fuel lobby colluding with Big Ag? Could building these projects on fertile soil really impede future prospects at crop yields?
These are big questions we’ll be tackling in far more depth in next week’s edition of The Fight. Trust me, the answers will surprise you.
Here are the most notable renewable energy conflicts over the past week.
1. Worcester County, Maryland –Ocean City is preparing to go to court “if necessary” to undo the Bureau of Ocean Energy Management’s approval last week of U.S. Wind’s Maryland Offshore Wind Project, town mayor Rick Meehan told me in a statement this week.
2. Magic Valley, Idaho – The Lava Ridge Wind Project would be Idaho’s biggest wind farm. But it’s facing public outcry over the impacts it could have on a historic site for remembering the impact of World War II on Japanese residents in the United States.
3. Kossuth County, Iowa – Iowa’s largest county – Kossuth – is in the process of approving a nine-month moratorium on large-scale solar development.
Here’s a few more hotspots I’m watching…
The most important renewable energy policies and decisions from the last few days.
Greenlink’s good day – The Interior Department has approved NV Energy’s Greenlink West power line in Nevada, a massive step forward for the Biden administration’s pursuit of more transmission.
States’ offshore muddle – We saw a lot of state-level offshore wind movement this past week… and it wasn’t entirely positive. All of this bodes poorly for odds of a kumbaya political moment to the industry’s benefit any time soon.
Chumash loophole – Offshore wind did notch one win in northern California by securing an industry exception in a large marine sanctuary, providing for farms to be built in a corridor of the coastline.
Here’s what else I’m watching …