Maine has statutory goals for energy storage projects – 300 megawatts by the end of this year and 400 megawatts by the end of 2030. To help reach those goals, the state is beginning the process of developing and evaluating an energy storage procurement program for up to 200 megawatts of cost-effective energy storage in Maine. Companies interested in participating in any procurement program that Maine adopts should start the initial development process early to allow sufficient time to address some potential local zoning challenges that they may face.

In 2023, the Maine Legislature passed An Act Relating to Energy Storage and the State’s Energy Goals, which directed the Governor’s Energy Office, in consultation with the Maine Public Utilities Commission (Commission), to evaluate designs for a program to procure commercially available utility-scale energy storage systems connected to the state’s transmission and distribution systems.

The Commission is now reviewing a recommendation from the Energy Office for a program to procure up to 200 megawatts of cost-effective energy storage for Maine that increases grid resilience, lowers electricity costs, maximizes federal incentives, and advances Maine’s clean energy goals and statutory requirements. While it is not yet clear what process the Commission will undertake to design and implement a storage procurement program, it is reasonable to expect that this program will be offered before Governor Mills’ term ends in two years.

One of the major challenges for energy storage projects in other states has been local governments enacting zoning bylaws that preclude construction of battery energy storage facilities. These zoning bylaws are often inconsistent with a state’s renewable energy goals. Some states, such as Massachusetts, allow for state exemption of local zoning bylaws if, among other reasons, the bylaw is not consistent with the public interest to meet renewable energy goals. See Pierce Atwood’s November 2024 alert on this subject.

Maine has a long-standing tradition of home rule, enshrined in the constitution, that allows municipalities to enact laws on any topic that is not prohibited to them by state or federal law. 

This means that municipalities can adopt all types of zoning rules and other performance standards to regulate energy storage projects. This could include traditional zoning, by limiting where such projects can be located, as well as various standards related to, among other things, fire safety, noise, visual screening, and buffering. 

Maine’s municipalities can also impose moratoria, which temporarily prevent planning boards and code enforcement officers from even processing, let alone approving, certain types of projects while the municipality enacts more stringent regulations to address the perceived impacts of the project. 

So, what do energy storage project developers need to do about municipal permitting in Maine?

• Because of home rule, the rules potentially vary in every one of Maine’s 488 municipalities. Developers need to analyze the permitting process in each municipality where they are considering siting a project. Some municipalities will naturally favor energy storage projects, while some will not. Key questions include:
  • How does the municipality classify energy storage as a use and where is it allowed? Many local zoning ordinances may not have contemplated energy storage as a type of use, and thus it is likely prohibited in many cases. 
  • What are the dimensional standards, such as minimum lot size and setbacks, that apply to energy storage?
  • Are there separate performance standards that apply to energy storage? These might be in a variety of ordinances, such as zoning, site plan, subdivision, or other ordinances.
  • Is there a specific ordinance applicable to energy storage or renewable energy projects?
• Has the municipality adopted a moratorium?
  • By statute, a municipality can stop project development if it determines that existing ordinances are inadequate to prevent serious public harm from development. Although this sounds like a high standard, in practice it isn’t, and it is often used to pause review of controversial projects, such as solar projects, while municipalities adopt stringent requirements to either prevent or restrict development. 
  • Because of Maine’s unusual deference to municipal regulation, it is critical to understand that a moratorium can be imposed to stop development even after all permits for the project have been issued. This is because of Maine’s deferential view of vested rights, allowing changes in laws to apply retroactively more or less right up until the moment that actual construction begins. 

At the same time, there are options for developers to explore, including.

1. Consider proposing amendments to the applicable ordinance in question to clarify how energy storage projects fit into the ordinances.
2. Pursue a contract zone agreement, whereby the municipality rezones the specific parcel in question to allow the proposed project. This is done through a contract, approved by the legislative body of the municipality, that often exacts a benefit from the developer in exchange for the favorable zoning treatment. 
3. Consider proposing a bill to enact something akin to what Massachusetts did for energy storage projects – provide an exemption for local zoning from the Legislature to ensure localized interests do not unduly prevent the state from accomplishing its energy storage goals. (Maine already provides a local zoning exemption in 30-A M.R.S. § 4352(4) that primarily applies to transmission lines, but an entirely new statutory scheme would be needed in Maine to establish a local land use exemption for storage.)

As with any development project, in addition to permitting and regulatory issues, energy storage projects in Maine require expertise, diligence, and planning to address real estate, title, and tax issues.