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Talking local development moratoria with Heatmap’s own Charlie Clynes.

This week’s conversation is special: I chatted with Charlie Clynes, Heatmap Pro®’s very own in-house researcher. Charlie just released a herculean project tracking all of the nation’s county-level moratoria and restrictive ordinances attacking renewable energy. The conclusion? Essentially a fifth of the country is now either closed off to solar and wind entirely or much harder to build. I decided to chat with him about the work so you could hear about why it’s an important report you should most definitely read.
The following chat was lightly edited for clarity. Let’s dive in.
Tell me about the project you embarked on here.
Heatmap’s research team set out last June to call every county in the United States that had zoning authority, and we asked them if they’ve passed ordinances to restrict renewable energy, or if they have renewable energy projects in their communities that have been opposed. There’s specific criteria we’ve used to determine if an ordinance is restrictive, but by and large, it’s pretty easy to tell once a county sends you an ordinance if it is going to restrict development or not.
The vast majority of counties responded, and this has been a process that’s allowed us to gather an extraordinary amount of data about whether counties have been restricting wind, solar and other renewables. The topline conclusion is that restrictions are much worse than previously accounted for. I mean, 605 counties now have some type of restriction on renewable energy — setbacks that make it really hard to build wind or solar, moratoriums that outright ban wind and solar. Then there’s 182 municipality laws where counties don’t have zoning jurisdiction.
We’re seeing this pretty much everywhere throughout the country. No place is safe except for states who put in laws preventing jurisdictions from passing restrictions — and even then, renewable energy companies are facing uphill battles in getting to a point in the process where the state will step in and overrule a county restriction. It’s bad.
Getting into the nitty-gritty, what has changed in the past few years? We’ve known these numbers were increasing, but what do you think accounts for the status we’re in now?
One is we’re seeing a high number of renewables coming into communities. But I think attitudes started changing too, especially in places that have been fairly saturated with renewable energy like Virginia, where solar’s been a presence for more than a decade now. There have been enough projects where people have bad experiences that color their opinion of the industry as a whole.
There’s also a few narratives that have taken shape. One is this idea solar is eating up prime farmland, or that it’ll erode the rural character of that area. Another big one is the environment, especially with wind on bird deaths, even though the number of birds killed by wind sounds big until you compare it to other sources.
There are so many developers and so many projects in so many places of the world that there are examples where either something goes wrong with a project or a developer doesn’t follow best practices. I think those have a lot more staying power in the public perception of renewable energy than the many successful projects that go without a hiccup and don’t bother people.
Are people saying no outright to renewable energy? Or is this saying yes with some form of reasonable restrictions?
It depends on where you look and how much solar there is in a community.
One thing I’ve seen in Virginia, for example, is counties setting caps on the total acreage solar can occupy, and those will be only 20 acres above the solar already built, so it’s effectively blocking solar. In places that are more sparsely populated, you tend to see restrictive setbacks that have the effect of outright banning wind — mile-long setbacks are often insurmountable for developers. Or there’ll be regulations to constrict the scale of a project quite a bit but don’t ban the technologies outright.
What in your research gives you hope?
States that have administrations determined to build out renewables have started to override these local restrictions: Michigan, Illinois, Washington, California, a few others. This is almost certainly going to have an impact.
I think the other thing is there are places in red states that have had very good experiences with renewable energy by and large. Texas, despite having the most wind generation in the nation, has not seen nearly as much opposition to wind, solar, and battery storage. It’s owing to the fact people in Texas generally are inclined to support energy projects in general and have seen wind and solar bring money into these small communities that otherwise wouldn’t get a lot of attention.
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Things in Sulphur Springs are getting weird.
Texas Attorney General Ken Paxton is trying to pressure a company into breaking a legal agreement for land conservation so a giant data center can be built on the property.
The Lone Star town of Sulphur Springs really wants to welcome data center developer MSB Global, striking a deal this year to bring several data centers with on-site power to the community. The influx of money to the community would be massive: the town would get at least $100 million in annual tax revenue, nearly three times its annual budget. Except there’s a big problem: The project site is on land gifted by a former coal mining company to Sulphur Springs expressly on the condition that it not be used for future energy generation. Part of the reason for this was that the lands were contaminated as a former mine site, and it was expected this property would turn into something like a housing development or public works project.
The mining company, Luminant, went bankrupt, resurfaced as a diversified energy company, and was acquired by power giant Vistra, which is refusing to budge on the terms of the land agreement. After sitting on Luminant’s land for years expecting it to be used for its intended purposes, the data center project’s sudden arrival appears to have really bothered Vistra, and with construction already underway, the company has gone as far as to send the town and the company a cease and desist.
This led Sulphur Springs to sue Vistra. According to a bevy of legal documents posted online by Jamie Mitchell, an activist fighting the data center, Sulphur Springs alleges that the terms of the agreement are void “for public policy,” claiming that land restrictions interfering with a municipality’s ability to provide “essential services” are invalid under prior court precedent in Texas. The lawsuit also claims that by holding the land for its own use, Vistra is violating state antitrust law by creating an “energy monopoly.” The energy company filed its own counterclaims, explicitly saying in a filing that Sulphur Springs was part of crafting this agreement and that “a deal is a deal.”
That’s where things get weird, because now Texas is investigating Luminant over the “energy monopoly” claim raised by the town. It’s hard not to see this as a pressure tactic to get the data center constructed.
In an amicus brief filed to the state court and posted online, Paxton’s office backs up the town’s claim that the land agreement against energy development violates the state’s antitrust law, the Texas Free Enterprise and Antitrust Act, contesting that the “at-issue restriction appears to be perpetual” and therefore illegally anti-competitive. The brief also urges the court not to dismiss the case before the state completes its investigation, which will undoubtedly lead to the release of numerous internal corporate documents.
“Sulphur Springs has alleged a pattern of restricting land with the potential for energy generation, with the effect of harming competition for energy generation generally, which would necessarily have the impact of increasing costs for both Sulphur Springs and Texas consumers generally,” the filing states. “Evaluating the competitive effects of Luminant’s deed restrictions as well as the harm to Texans generally is a fact-intensive matter that will require extensive discovery.”
The Texas attorney general’s office did not respond to multiple requests for comment on the matter. It’s worth noting that Paxton has officially entered the Republican Senate primary, challenging sitting U.S. Senator John Cornyn. Contrary to his position in this case, Paxton has positioned himself as a Big Tech antagonist and fought the state public utilities commission in pursuit of releasing data on the crypto mining industry’s energy use.
A solar developer gets into a forest fight in California, and more of the week’s top conflicts around renewables.
1. Sacramento County, California – A solar project has become a national symbol of the conflicts over large-scale renewables development in forested areas.
2. Sedgwick County, Kansas – I am eyeing this county to see whether a fight over a solar farm turns into a full-blown ban on future projects.
3. Montezuma County, Colorado – One southwest Colorado county is loosening restrictions on solar farms.
4. Putnam County, Indiana – An uproar over solar projects is now leading this county to say no to everything, indefinitely.
5. Kalamazoo County, Michigan – I’m eyeing yet another potential legal challenge against Michigan’s permitting reform efforts.
A conversation with Renee Grabe of Nature Forward
This week’s conversation is with Renee Grabe, a conservation advocate for the environmental group Nature Forward who is focused intently on data center development in Northern Virginia. I reached out to her for a fresh perspective on where data centers and renewable energy development fits in the Commonwealth amidst heightened frustration over land use and agricultural impacts, especially after this past election cycle. I thought her views on policy-making here were refreshingly nuanced.
This transcript was lightly edited for clarity.
Tell me more about how you started focusing on data centers.
So, in Fairfax County, in 2020 or 2021, people were pursuing the construction of an indoor ski facility on a landfill. From a climate perspective, to build something that would need to be cooled 24/7 for indoor skiing seemed like a very bad proposal in terms of energy usage. And for what kind of gain?
Then our friends at the Sierra Club were saying, indoor ski slopes? Bad, yes. But data centers? Way, way worse. Those aren’t cooling to support snow but are cooling much larger areas on a much larger scale, dwarfing the area of that one ski slope. This was around the time the Prince William Digital Gateway was showing up – they were saying all these acres of agricultural lands and single-family housing zones were about to be rezoned. This was a big deal, and Sierra Club led the way in opening our eyes to this. The rezoning ultimately passed. The data centers were sued and the people who filed the lawsuit won, but pre-planning for the centers is still allowed to take place.
The way we think about the impacts of data centers, besides the loss of natural lands and the amount of energy that’s going to be needed to power these things, has been diesel generators. These are the things that are backup generation and the camel’s nose under the tent is trying to get them to be primary power.
Now I want to ask you a provocative question: is there any middle ground between letting these projects be built unfettered and outright bans on their development?
We have no regulation today. From our standpoint, these things are coming, they’re here. We know a lot more now than we did in 2022. As we make decisions about how and where to build these facilities we all need – I mean we’re using one right now. I use a data center all day at work. Teams conferencing. ChatGPT to answer a question. We need these. So if we’re going to build them, let’s not give a pass to some of the world’s largest and richest companies. Let’s ask them to put the guardrails on to protect our residences and our infrastructure to make sure they’re as sustainable as possible.
Okay, so what are the guardrails then?
The costs of what was going to go into a data center need to be more transparent. We need to bring accountability to the forefront right away as they’re being built.
In Ohio, they passed a law requiring data center companies to pay for a high percentage of the power they’re using. That cut a significant number of the projects in Ohio. This industry is so speculative and a land grab and a rush to be first to get the most.
You have this dichotomy of land values for residences being inundated, while land values for developers are skyrocketing. We have an affordability crisis going on and we are all on the hook for paying for the infrastructure to power these things.
So when you think about what regulation might make data center development more reasonable, it’s asking for the costs happening to be borne by the industry making them. Let’s get rid of some of the incentives for power users. We don’t need to be encouraging the loss of state revenue, either – we’re leaving money on the table to bring these facilities here.
Lastly, our readers love to get hyperlocal. I know you’re intently focused on Fairfax County right now which has been a big part of the data center boom in Virginia – what’s happening there?
There are a couple things that have happened over the course of this past year. Fairfax County passed a data center zoning ordinance amendment – minimum requirements a data center will have to adhere to. The big thing with that one is, you have to have a special exception if you build within a mile of a Metro station. When you think about good land use and building a data center within a walkable distance of a Metro, that’s eye-openingly poor land use policy and a missed opportunity for transit-oriented development. It doesn’t mean they can’t be built near one but you have to get a special exception.
Some things can’t be regulated at the local level. Like generators. That’s in the hands of the state.
Last night, we had a public hearing at the Fairfax County board level for our policy plan – our comprehensive plan providing guidance for developers who want to get a special exception or rezoning. It is not law. It is not required. It is a visionary document that helps us get to better. They’ve added a section for data centers in that. In May, staff put forward something pretty good, making sure data centers met a minimum level of efficiency. But our chairman of the county board said it went above and beyond our zoning ordinance and said he didn’t think it was appropriate, so staff rewrote that section and stripped out a lot of the specificity and higher standards that were in that document.
At the hearing, they deferred a decision, listening to the public but not having a discussion at the board level. They’ve left the record open through December 9th.