In a unanimous decision issued July 15, 2019, the Maryland Court of Appeals held that the Maryland Public Service Commission (“PSC”) process for granting a Certificate of Public Convenience and Necessity (“CPCN”) for potential solar farms preempts local zoning regulation. The decision definitively establishes the PSC as the “ultimate decision-maker” for the siting of solar farms, although the PSC is required to give “due consideration” to local government concerns and recommendations. The case is Board of County Comm’rs of Washington County v. Perennial Solar, LLC, --- Md. ---, No. 66 Sept. Term 2018, 2019 WL 3071755 (Md. July 15, 2019).
Perennial Solar, LLC applied for a special exception and zoning variance to construct a 10 mega-watt solar generating facility in Washington County, Maryland. After the Washington County Board of Zoning Appeals granted the application, Perennial filed an application for a CPCN with the PSC. Neighboring landowners opposed to the project appealed the Board of Zoning Appeals’ grant of the special exception to the Circuit Court for Washington County. Before a hearing in the circuit court, Perennial raised the issue of subject matter jurisdiction, arguing that the PSC had exclusive jurisdiction over the siting of the facility once the CPCN application was filed. The circuit court agreed that the PSC had exclusive jurisdiction and dismissed the case. The Court of Special Appeals affirmed, holding that State law governing the CPCN process impliedly preempts local zoning regulation. See Board of County Comm’rs of Washington County v. Perennial Solar, LLC, 239 Md. App. 380 (2018) on which we wrote in the February Issue of Relating to Real Estate.
In affirming the Court of Special Appeals’ decision, the Court of Appeals held that the comprehensiveness of the PSC’s laws governing the siting of electric generating stations and transmission lines indicated the General Assembly’s intent to preempt the entire field. In addition, the PSC’s statutory obligations to give notice to local governing bodies and to give “due consideration” to the local government’s recommendations indicate that the recommendations are advisory only and not controlling. The Court also observed that recent legislative amendments to the CPCN statute, together with the General Assembly’s rejection of other amendments that would have given local jurisdictions more control over the siting of generating stations, bolstered the Court’s holding that the PSC process preempts local zoning.
Gordon Feinblatt submitted an amicus brief on behalf of the Utility Scale Solar Energy Coalition of Maryland (“USSEC”) in the case. In its brief, USSEC argued that PSC preemption of local zoning is consistent with the General Assembly’s intent, ensures a fair and predictable process for the siting of solar electric generating stations in the State, and will help promote the important State policy of increasing renewable energy sources of power, most recently reflected in the Clean Energy Jobs Act of 2019. While the CPCN process already includes appropriate consideration of local concerns as part of the PSC’s comprehensive review, it also provides a necessary check on unreasonable local regulation.
Commentary: The bottom line is that the PSC must consider, but is not bound by, the local jurisdiction’s recommendation and zoning. We believe that this decision is legally correct because of the language of the applicable statutes, the role and mission of the PSC, recent legislative action and inaction, and the practical benefits of having solar energy policy implemented on a State-wide basis.