This week’s conversation is with Matthew Eisenson at Columbia Law School’s Sabin Center for Climate Change Law. Eisenson is a legal expert and pioneer in the field of renewable energy community engagement whose work on litigating in support of solar and wind actually contributed to my interest in diving headlong into this subject after we both were panelists at the Society of Environmental Journalists’ annual conference last year. His team at the Sabin Center recently released a report outlining updates to their national project tracker, which looks at various facility-level conflicts at the local level.
On the eve of that report’s release earlier this month, Eisenson talked to me about what he believes are the best practices that could get more renewable projects over the finish line in municipal permitting fights. Oh — and we talked about Ohio.
The following conversation was lightly edited for clarity. Let’s dive in.
So first of all, walk me through your report. How has the community conflict over renewable energy changed in the U.S. over the past year?
A few things I would highlight. In Ohio, we now have 26 out of 88 counties that have established restricted areas where wind or solar are prohibited. These restrictions are explicitly enabled by the state law, SB 52. I’d also highlight that while the majority of litigation in our database is state-level litigation and contested case administrative proceedings, there are certain types of projects — particularly offshore wind — that have an extremely high prevalence of federal litigation. A majority of federally permitted offshore wind projects have been subject to federal lawsuits. The plaintiffs in these lawsuits have never succeeded on the merits, but they keep filing them and they drive up costs.
In general, as a topline takeaway, [our] report shows more and more of the same.
You personally do quite a bit of legal work on solar and wind permitting battles in the state of Ohio, where as you noted counties are curtailing deployment left and right. What’s your bird’s eye view of the situation in the state right now?
So Ohio has for years had a state-level siting process. The Ohio Power Siting Board reviews all applications for large-scale energy generation facilities, 50 megawatts or larger. The Siting Board has a set of criteria they are required to apply when they are reviewing an application, but basically only one of them seems to matter in deciding whether a project is approved or denied: whether the project serves the public’s convenience and necessity.
We’re seeing that in the majority of proceedings for approvals of large-scale wind and solar projects, there will be groups that intervene in opposition to the project, and often these groups will argue that there is so much local opposition that the project cannot possibly serve the public interest.
The Power Siting Board has been rejecting that argument in important cases recently. The board is still putting substantial weight on whether local governments are supportive or not supportive of a project, but are not rejecting projects just because of a demonstration of local opposition.
Say you’re a developer and you start facing opposition. What is the right legal avenue? How should they do the calculus, so to speak, on how to navigate legal options?
There’s numerous things developers can do. They can work with the local government and community-based groups to work with the local government to craft host community agreements, community benefit agreements — voluntary but binding contracts with the local community where a developer provides benefits; in exchange, community-based groups would agree to support the project, or at least not to oppose it. These can be very helpful and particularly meaningful in places where a local government itself is not in charge of permitting decisions themselves. So in a state like Ohio, if a developer negotiates host benefit agreements with local township governments and then those governments don’t turn around to intervene against a project, those would be extremely helpful.
It’s also important for developers to do community outreach and build a base of local supporters, and get those supporters to turn out at public meetings. Historically opponents of projects are more motivated to show up at a local meeting than supporters, but it’s really not a good look for a project when you have 500 turn out against it and 10 turn out to support.
For years the opponents were very proactive. There would be a proposal for a project in one county in Kansas and a group of opponents in the neighboring county would propose a restrictive ordinance to block future projects — supporters weren’t thinking proactively in the long-term. I think a concentrated effort will produce meaningful results. But they’re behind.
