A Maryland Court of Appeals’ recent decision to uphold state law over local authority on where solar fields are placed should not be much of a surprise. The Maryland Legislature long ago invested exclusive authority to control the location and sizing of energy production facilities and the locating of transmission lines in the Maryland Public Service Commission. Indeed, the Legislature recently reinforced that position by expressly limiting the authority of local governments to provide input and recommendations as part of Maryland’s ramped up renewable energy agenda.
The Perennial Solar decision affirmed the decision of the Washington County Board of Zoning Appeals to grant a conditional use and variance to operate a commercial-sized array near a historic rural community. Local residents sought judicial review of the decision. Contemporaneously, the Washington County Commissioners also intervened and simultaneously adopted legislation to prohibit such arrays near certain rural townships.
The Circuit Court for Washington County affirmed the Board of Zoning Appeals and rejected the County’s legislative move, citing the doctrine of implied preemption. The Court of Special Appeals affirmed the Circuit Court. Not satisfied, Washington County sought review by the Court of Appeals. Kent County and Queen Anne’s County joined in. The Court granted review and after oral arguments affirmed the lower court holdings.
There was a silver lining buried deep in the opinion. The Court noted the limited nature of the PSC’s preemptive powers, namely control of sizing and location, but reserved on prohibiting local regulations over end use and remediation. The Perennial Solar decision is limited to solar arrays, but could be easily applied to wind energy projects.
This is a good opportunity for the Kent County Commissioners and Queen Anne’s County Commissioners to tighten the solar and wind generation regulations to address remediation when solar or wind equipment stops functioning, mandating notice to the county upon malfunction, require the timely repair, replacement or removal, and require bonding for removal costs.