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Three Key Energy Land Use Issues to Watch in 2021

Dec. 18, 2020, 9:01 AM

Legal and regulatory strife surrounding the building of renewable energy and other clean energy infrastructure on both private and public land continues unabated heading into 2021.

Land use decisions have always played an important role in energy issues. Three issues below bear watching in 2021 for new developments—electric vehicles and the need for charging infrastructure, flexibility for solar developers working with farmers, and how state governments will address the redevelopment of brownfields.

Will Cities Help Pave the Way for Electric Vehicles?

The number of electric vehicles (EVs) on the road continues to increase and the projections for future growth show increasing market penetration. Just how fast widespread adoption of EVs can happen will depend on a number of things, including the availability of desirable models and the affordability of entry-level models.

Perhaps the biggest factor, though, is how quickly charging infrastructure can be built out. Efforts to remove barriers and encourage build-out are underway, and that could increase in 2021.

Municipalities will be at the forefront of the effort to remove barriers to an extensive build-out of charging infrastructure. In many places, zoning ordinances require a right-of-way or use permit before charging infrastructure can be constructed and operated. The city of Madison, Wis., recently demonstrated one way for a municipality to remove barriers when the city’s plan commission discussed an ordinance that would allow charging stations as a permitted use in much of the city, thus negating the need to obtain a use permit.

Madison, along with Atlanta, Chicago, and Seattle, also hopes to encourage the build-out of charging stations by phasing in a requirement to include them at certain residential and commercial buildings. Applied to new construction, these cities hope to capture the cost efficiencies available when charging infrastructure is included as part of initial development, rather than as a retrofit.

By taking similar steps, more cities can play a role in building out charging infrastructure before the absence of it is a constraint on EV growth.

Will Solar Developers and Farmers Push for More Flexibility?

Many Midwestern states have long histories of trying to keep the best and most productive farmland in production through programs that provide tax incentives for continuing agricultural practices or exclude such land from development areas. Such programs can make it more difficult and more expensive to find suitable sites for solar projects. Moreover, they limit a farmer’s ability to create a diversified revenue stream.

In recent years, however, some states have heeded the call for more flexibility and started to relax the rules of these programs to give farmers more opportunities to site projects on land that was previously tied up or off limits. Given the benefits, it is likely that solar developers and farmers will continue to push back on regulatory requirements that limit their ability to work together.

In 2021, we could see a push from farmers and developers on ground cover and decommissioning requirements in support of solar-integrated agriculture. Most site permits or local ordinances require developers to plant and maintain ground cover and contain decommissioning provisions that require developers to return the site to its former status after the project’s useful life.

However, these provisions do not contemplate that solar may only be one facet of the development at the site. Solar-integrated agriculture projects combine solar projects with pollinator habitat, grazing, and shade-friendly crops and allow developers and farmers to stack benefits on a single site and produce better, more sustainable outcomes.

To encourage and fully realize the benefits of such projects, permitting authorities need to provide more flexibility in their ground cover and decommissioning requirements. Rather than a one-size-fits-all approach, permitting authorities should accommodate maintenance requirements that do not mandate mowing or other practices counterproductive to solar-integrated agriculture.

Similarly, decommissioning requirements presume that a farmer would prefer the site to be regraded for cultivation when in fact the farmer might prefer decommissioning resources be used to preserve or augment the changes. These few simple changes to common land use requirements would benefit both farmers and solar developers.

Will Governments Facilitate More Brownfield Redevelopment?

The continued growth of solar and some rules related to co-location are pushing more developers to look for sites they may have previously passed over, including brownfields, which are previously developed properties that may contain a hazardous substance, pollutant, or contaminant. That fact has many states studying the ways they could facilitate or spur the development of solar brownfields not suitable for most other uses.

Minnesota is one example. The state lags behind others in the number of solar projects on landfills because most of the landfills are enrolled in the state’s Closed Landfill Program, which almost uniformly prohibits private use of the landfill site. In December 2020, a Minnesota state Legislature-commissioned report on the feasibility of solar on closed landfills was delivered and provides recommendations for facilitating solar on these sites.

The state legislature will take up the report in its 2021 session and, if it follows the recommendations, could open up more than 4,500 acres for reuse just as the state’s largest utility plans to add several thousand megawatts of solar in pursuit of a carbon-free goal and in compliance with state mandates.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Thomas Braun is an environmental and energy attorney at Stoel Rives whose practice includes advising clients in the energy, real estate development, and agribusiness industries on matters related to contaminated site remediation and redevelopment, land use and permitting, and environmental due diligence.