Solar Siting in America: Think Locally, but Act Statewide

In 2021, the White House released “The Long-Term Strategy of the United States.” U.S. Dep’t of State & U.S. Exec. Off. of the President, The Long-Term Strategy of the United States: Pathways to Net-Zero Greenhouse Gas Emissions by 2050 (Nov. 2021). This includes a goal of 100% carbon pollution–free electricity by 2035, which necessitates the need for a rapid and substantial increase in the amount of solar-generated energy across the nation. Id. The U.S. Department of Energy’s Office of Energy Efficiency & Renewable Energy has concluded that solar capacity will need to reach one terawatt (TW) to meet this decarbonization goal. Large-Scale Solar Siting Resources, U.S. Solar Energy Tech. Off. (2024). To frame it another way, modeling undertaken for the Princeton Net-Zero America Study indicates that within the next three decades, total electricity-generating capacity needs to increase by a factor of four, while annual wind and solar additions need to increase by a factor of five. Princeton Univ. et al., Net-Zero America: Potential Pathways, Infrastructure, and Impacts (Oct. 29, 2021). There is no doubt that we need to install as much utility-scale solar photovoltaic facilities as we can as soon as possible.

And yet, it is perhaps unsurprising that there is no consistency in the siting of these large-scale renewable energy projects throughout the different states. Here we are specifically interested in “siting standards” for solar development, those rules and regulations that manage land use and regulate development and construction of utility-scale solar facilities (as opposed to other energy development approvals like certification of public convenience and necessity or interconnection or rate issues).

Traditionally, it makes sense that the “where” of development is left to local government, as they are most connected with the current needs and future vision of the community and have the most complete knowledge of local land use and sensitive environmental and community areas. But many municipalities have not even considered large-scale solar in their local zoning and other ordinances, which can make them very wary when utility-scale solar projects are being proposed in their communities. And even when they have, individual municipalities can be ill-equipped to understand the larger picture for solar development connectedness and are susceptible to ill-informed NIMBY (“Not in My Backyard”) arguments.

For example, the Sabin Center for Climate Change Law at Columbia Law School has released reports documenting state and local restrictions against and opposition to renewable energy facilities across the United States. Their most recent update from June 2024 identifies at least 395 local restrictions across 41 states that are “so severe that they could have the effect of blocking a renewable energy project.” Matthew Eisenson et al., Opposition to Renewable Energy Facilities in the United States: June 2024 Edition, Sabin Ctr. for Climate Change Law (June 2024). Additionally, they found 378 renewable energy projects that have encountered significant opposition across the nation, representing a “major increase” over their May 2023 edition. Id. Specifically, in Pennsylvania we’re seeing that communities often have a fundamental misunderstanding of the impact of solar installations, especially when it comes to agricultural lands—concerns like stormwater and esthetics or community character that, for whatever reason, are not shared with other more impactful and permanent development such as low-density residential. See id. at 247–50 (summarizing recent opposition and local restrictions to solar facilities in Pennsylvania).

Municipalities also can enact seemingly innocuous zoning ordinances, such as minimum setback requirements, that can end up having severe negative impacts on the ability to develop large-scale solar facilities, reducing potential solar resources by 38%. See Anthony Lopez et al., Impact of Siting Ordinances on Land Availability for Wind and Solar Development, 8 Nat. Energy 1034 (2023). We’re seeing more and more municipalities deny solar projects or enact unduly restrictive ordinances that make it almost impossible to build large-scale solar projects. Municipalities just aren’t designed to see the forest through the trees when it comes to land use and renewable energy.

Interestingly, however, once utility-scale solar projects are constructed in a community, the attitudes often shift. When surveyed, neighbors (within three miles) of large-scale solar facilities actually report 85% positive or neutral attitudes towards the local solar project, with the “positive” attitudes outweighing the “negative” attitudes by nearly three to one. Joseph Rand et al., Perceptions of Large-Scale Solar Neighbors: Results from a National Survey (Technical Brief) at 2, Berkeley Lab (Apr. 2024). Only at the very largest scale (>100MW) or with those very close neighbors (< ¼ mile) do we see the attitudes not shifting. Id. It seems that many of the concerns and fears of the impacts of solar are not borne out after construction, and 42% of neighbors of those large-scale solar facilities (<100MW) stated that they would support more solar development in their community. Id.

Thus, most of these local resident concerns are either unsupported or do not bear out and yet are very frequently enough to sway municipal officials into opposing large-scale solar projects.

Because of this, local authority over siting can discourage thoughtful and connected solar infrastructure, lead to projects being located in areas that have negative environmental consequences, or, in some cases, ban solar development outright. As researchers at the Sabin Center note, “the volume and nature of the restrictions and controversies catalogued [at the state and local levels] demonstrate that local opposition to renewable energy facilities is widespread and growing and that it represents a potentially significant impediment to achievement of climate goals.” Eisenson et al., supra, at 4. Given the current climate crisis and the need to increase renewable energy production immediately, it makes the most sense for siting decisions for utility-scale solar development to be at the state level. But what can that look like?

A helpful new study was released in June 2024 cataloguing each state’s regulatory scheme for renewable energy siting, providing explanation, helpful resources, and public engagement opportunities. See Regulatory Assistance Program et al., Laws in Order: An Inventory of State Renewable Energy Siting Policies (June 2024). The report classifies four main types of regulatory schemes for solar siting: state, local, hybrid, and dual. Only five states have vested principal siting authority at the state level. Id. Twelve states have empowered local municipalities with principal jurisdiction over siting or renewable energy facilities, including states that remain silent, thereby leaving it with traditional municipal land use authority. Id. The remaining 33 states give local government authority over siting standards through either the hybrid model (authority shifts depending on the size of the project, with local authority retained for smaller projects) or the dual model (both state and local governments must approve). Id. In these states, the state review and permitting can supersede all local zoning authority. But even then, the range of sizes subject to state preemption can vary tremendously, from 1 to 2 MW (Connecticut and Maryland) to 300 MW in New Mexico, leaving many solar facilities still governed by local siting laws.

In all, 90% of the states give jurisdiction over the siting of solar facilities to municipalities in some form. Therefore, we need to figure out ways to ensure that local siting decisions do not hinder solar development. A major regulatory overhaul is unlikely in many states, but there are a few ways that states can leave decision-making in local hands while ensuring statewide encouragement of solar development at the rate needed to reach net zero goals.

The easiest way to encourage statewide solar development is to prohibit local ordinances that would unreasonably restrict or even outright ban solar developments. The following states have enacted statutes that specifically prohibit local ordinances that are too restrictive of solar facilities: Illinois (55 Ill. Comp. Stat. § 5/5-12020(h) (cannot prohibit within agricultural or industrial districts)), Indiana (Ind. Code § 36-7-2-8 (may not unreasonably prohibit or unreasonably restrict)), Nevada (Nev. Rev. Stat. § 278.0208 (prohibits impeding solar development), New Mexico (N.M. Stat. Ann. § 3-18-32 (Solar Rights Act limits restrictions and prohibitions on solar installments)), and North Carolina (N.C. Gen. Stat. §§ 153A-123(b1)(b), 160A-175(b1)(5) (limitations on prohibiting small-scale solar)). This may be a practical compromise in many states as it maintains local authority over siting but ensures that individual municipalities cannot unilaterally hinder solar development across the state. It reduces the likelihood that NIMBYism will overtake state renewable energy goals. This is also a helpful tool because it can be used in states that have hybrid or dual jurisdiction over solar siting.

There are other ways states attempt to reign in municipal siting authority. A handful of states have set minimum standards that local governments must follow in siting solar facilities. In Vermont, for example, the state sets minimum setback requirements. Vt. Stat. Ann. tit. 30, § 248(s). Other states attempt to avoid bad siting decisions at the local level by reserving state veto power over local siting decisions. In Colorado, even though a public utility regulated by the Colorado Public Utilities Commission (CPUC) must comply with all local zoning ordinances, a county decision to deny a project can be appealed to the CPUC. Colo. Rev. Stat. § 29-20-108(5)(a). Similarly, the Connecticut Siting Council can revoke municipal zoning orders for projects over 1 MW. Conn. Gen. Stat. § 16-50x(d). While this strategy can ultimately overturn burdensome local decisions, it also can present a complicated and drawn-out process fraught with regulatory uncertainty.

It seems too that more and more states are taking steps to limit local siting authority. The Regulatory Assistance Project’s analysis looked at recent policy changes starting with New York’s April 2020 bill (A9508-B) that established a state-level siting office and included incentives and preemptions (carrots and sticks) for siting within the states. Regulatory Assistance Program et al., Laws in Order: An Inventory of State Renewable Energy Siting Policies (Webinar) (June 20, 2024). Washington (HB1812 (June 2022)) and California (AB205 (Oct. 2022)) created opt-in state-level permitting schemes to streamline and expediate large-scale solar projects. Both Illinois (HB4412 (Jan. 2023)) and Michigan (HB5120 (Nov. 2023)) both expressly limited county authority over siting of renewable projects, with Michigan also adding a pathway for state-level siting authority. Ohio seems to be the odd state out of this trend when, in July 2021 (SB52), it removed renewable siting authority from the Ohio Siting Board and placed in squarely in the hands of county government. Overall, this trend recognizes that while it is critical to encourage utility-scale solar facilities and that regulatory certainty across the state is necessary, residents in the communities where these projects are being proposed want to feel like they have more of a say in what happens in their communities and are therefore hesitant to have increased state level siting decision-making authority. Rand et al., supra, at 81.

There are many barriers to deployment of renewable energy such as solar, but perhaps the most hinderance comes from local opposition and complicated and confusing local ordinances and authority. With the vast majority of states leaving all or some power at the local level, an easy way to ensure that utility-scale solar facilities can be built while making sure local communities feel heard is not to take away all local siting authority but to use state-level authority to prohibit overly restrictive local ordinances. By preempting burdensome local ordinances, states can be considerate of local geography and community needs, while encouraging large-scale solar projects at a statewide level.