With the Inflation Reduction Act (2022), we are seeing unprecedented incentives created by the federal government for the development of clean and renewable energy, clean fuels, and carbon capture and storage. Despite the role these technologies are set to play in meeting clean energy and carbon reduction goals set by the federal government and several states, local buy-in where these projects will occur remains critical to their successful development. We are seeing increased challenges to these projects by local municipalities in the form of moratoriums, resolutions, and petitions to intervene in permitting actions, and in particular for solar and battery storage projects. While these local opposition measures face their own challenges in court, the uncertainty these actions may bring to investment decisions for energy transition projects cannot be overlooked.

Although renewable energy projects such as wind and solar in general do not receive the same environmental pollution concerns as traditional industrial projects, local municipalities are quickly seeking either temporary or permanent moratoriums or enacting land use plans that regulate the development of commercial renewable projects.

This situation played out recently in Texas, where the Franklin County Commissioner’s Court (Court) adopted an ordinance that placed a 180-day moratorium on commercial solar energy projects where, during this time, the Court could not issue any license, road permit, or approval related to a commercial solar energy facility.^[1] The resolution adopting the moratorium referred to Section 251.003 of the Texas Transportation Code as providing the authorization for adopting the moratorium. The resolution also provided that the county had “compelling interest protecting public health, safety, and the 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 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 scope of the Court’s authority granted under the Transportation Code or the Health and Safety Code provisions cited in the opinion request.^[2]

Many times, local jurisdictions do not have preexisting ordinances or land use plans that address the siting of clean energy projects such as wind and solar and therefore may exercise control via special permits that require local approval by the governing body. And with the lack of a predictable permitting process, the chance for opposition to delay a project is greatly increased. This uncertainty can lead to delays in financing, as lenders may be weary of financing projects where there is uncertainty as to the risk in obtaining a necessary permit.

With an increased effort to oppose renewable energy installations, project stakeholders should closely evaluate the local regulatory structures in place when designing the siting of such projects and especially before announcing a project. A robust environmental impact analysis covering all resources should be conducted to identify any potential adverse impact of the project, and if such potential adverse impacts exist, a plan to address such impacts should be developed that will withstand any public or legal scrutiny. Public outreach to proactively address the issues on environmental impacts and aesthetics of the project can help mitigate against local concerns that could ultimately affect state and/or federal decisions on construction permits.

[1] Letter and Attachment from Honorable Landon Ramsay, Franklin Cnty. Att’y, to Off. of the Att’y Gen. at 1–5 (Feb. 21, 2023), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0500KP.pdf (“Request Letter” and “Attachment,” respectively).

[2] Tex. Op. Att’y Gen. AC-003 (2023).