How Local Opposition Can Thwart Renewable Energy Projects
Two-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 chemicals-dependent 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, utility-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.