How local opposition can thwart renewable energy projects

Two-thirds of Americans say they support the development of alternative energy sources, such as wind, solar and hydrogen. At least that’s according to a nationwide survey conducted in early June 2023 by the Pew Research Center.

Therefore, it may be surprising that there has been strong community-led opposition to renewable energy projects. According to a report published by Columbia Law School’s Sabin Center for Climate Change Law, between 1995 and 2023, nearly 300 renewable energy projects faced significant local opposition, and many projects were delayed or abandoned altogether.

Most recently, 82 new controversies were reported between March 2022 and May 2023. There are currently at least 228 local restrictions on renewable energy projects and nine state-level restrictions.

This discrepancy in public attitudes and actions highlights one of the biggest challenges facing proponents of renewable energy production in the US. remains as strong as ever.

The Inflation Reduction Act provides a boost

About a quarter of the controversies identified above have arisen since the final debates surrounding the August 2022 enactment of the Inflation Reduction Act (IRA). The IRA included significant federal government incentives for the development of clean and renewable energy, clean fuels, carbon capture and storage, and related technologies.

Despite the potential of these technologies to help federal and state governments meet clean energy and carbon reduction goals, local buy-in is essential if these projects are to get off the ground. However, evidence – even beyond that cited above – shows growing opposition to these projects.

The Texas project illustrates the challenges

Renewable energy projects such as wind and solar power generally do not pose the same environmental pollution concerns as traditional industrial projects. Yet they – along with battery storage and some other chemical-dependent technologies – are often the target of considerable community opposition. Among other things, local authorities implement temporary or permanent moratoriums, adopt resolutions, support petitions for permitting intervention, and adopt land-use plans to regulate the development of commercial renewable energy projects.

In Texas, for example, the Franklin County Commissioners Court passed an ordinance that imposed a 180-day moratorium on commercial solar projects. At that time, the court was prohibited from issuing any licenses, road permits or approvals related to an industrial-scale commercial solar facility. The resolution cited Texas Transportation Code Section 251.003 to authorize the moratorium. The resolution stated that the county “has a keen interest in protecting the public health, safety and welfare of its residents, visitors and businesses, and in protecting the agricultural heritage and economy of Franklin County, Texas.”

The Texas Attorney General was asked to comment on whether adopting a moratorium was within the court’s jurisdiction and whether it was enforceable. In a 2023 opinion, interim Attorney General Angela Colmenero said the court would likely find that the moratorium exceeded its authority granted under the Transportation Code or Occupational Health and Safety Code provisions cited in the opinion request.

If local jurisdictions do not have pre-existing ordinances or development plans governing the location of clean energy projects, they may attempt to exert control through special permits that require local approval from the governing body. With an unpredictable permitting process, opponents often have the opportunity to delay the project. This uncertainty can create obstacles to efforts to finance projects, as investors, lenders and others may be wary of committing funds to initiatives for which the likelihood of obtaining appropriate approvals is questionable.

Steps towards a brighter future

As efforts to oppose renewable energy installations grow, project stakeholders should take care to assess local regulatory structures and the sentiment of local officials in places where such projects are being considered. Such actions should be taken before determining the location of such investments, and especially before publicly announcing their intentions.

A robust environmental impact analysis covering all assets should also be undertaken to identify any potential adverse effects of the project. If such potential negative impacts are identified, project developers should proactively develop a plan to address these issues, with particular emphasis on preventing and withstanding any public or legal scrutiny.

Reaching out to the public to proactively address issues related to the environmental impact and aesthetics of a project can also help alleviate local concerns that may ultimately influence state and/or federal decisions regarding construction permits. While these steps do not guarantee the ultimate success of a renewable energy project, they can go a long way to improving its chances of implementation.

—Alex Prochaska is a special counsel in the Jones Walker Corporate and Litigation practice groups in the Lafayette office. Meghan Smith is a partner at Jones Walker, co-leader of the Environmental Litigation practice, and a member of the Energy, Environmental & Natural Resources, and Construction Industry teams.