The solar energy “boom” in Ohio continues to encounter opposition from local communities that would be home to large-scale solar developments. Yesterday, the Ohio Power Siting Board (OPSB) denied a solar project application in Defiance County due to “general opposition by local citizens and governmental bodies.” Just before the holidays, a project in Greene County met the same fate. The cases now bring the number of solar project rejections in Ohio to three. Each one highlights the role community opposition can play in project denial, particularly when local governments are part of that opposition.
How does OPSB review a proposed solar project?
The OPSB is responsible for reviewing applications for solar energy projects that are over 50 MW in capacity. Currently, the members of the OPSB include the chair of the Public Utilities Commission of Ohio, directors of the EPA and departments of Agriculture, Development, Health, and Natural Resources, and a public member, along with four non-voting legislators. In the future, a county commissioner and township trustee will also join in the OPSB review process.
Ohio law requires the OPSB to analyze eight criteria when reviewing an application and deciding whether to grant a certificate to construct a major utility facility. The law states in Ohio Revised Code 4906.10(A) that OPSB shall not grant a certificate unless it finds and determines all of the following:
(1) The basis of the need for the facility if the facility is an electric transmission line or gas pipeline;
(2) The nature of the probable environmental impact;
(3) That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations;
(4) In the case of an electric transmission line or generating facility, that the facility is consistent with regional plans for expansion of the electric power grid of the electric systems serving this state and interconnected utility systems and that the facility will serve the interests of electric system economy and reliability;
(5) That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters and under section 4561.32 of the Revised Code. In determining whether the facility will comply with all rules and standards adopted under section 4561.32 of the Revised Code, the board shall consult with the office of aviation of the division of multi-modal planning and programs of the department of transportation under section 4561.341 of the Revised Code.
(6) That the facility will serve the public interest, convenience, and necessity;
(7) In addition to the provisions contained in divisions (A)(1) to (6) of this section and rules adopted under those divisions, what its impact will be on the viability as agricultural land of any land in an existing agricultural district established under Chapter 929 of the Revised Code that is located within the site and alternative site of the proposed major utility facility. Rules adopted to evaluate impact under division (A)(7) of this section shall not require the compilation, creation, submission, or production of any information, document, or other data pertaining to land not located within the site and alternative site.
(8) That the facility incorporates maximum feasible water conservation practices as determined by the board, considering available technology and the nature and economics of the various alternatives.
Once all required elements of an application for a certificate are submitted and the application is complete, which can take many months, the OPSB staff and board begins its evaluation of the application to decide whether to grant the certificate. The review process, which might include intervening parties and multiple hearings, can last for many months or even a year or more. During that time, the OPSB must examine the application to determine if it meets the criteria in ORC 4906.10(A), relying on the expertise and recommendations of OPSB technical staff.
Recently approved solar projects
In December, the OPSB approved the application of Springwater Solar, a 155 MW solar project proposed to be built on 1,085 acres in Madison and Franklin counties, holding that the project met all of the criteria in ORC 4906.10(A). The decision brings the total of approved solar projects in Ohio to 34, representing 6,175 MW to be built on 63,554 acres, as illustrated on the map below. The map also displays additional pending applications totaling 3,139 MW and 29,076 acres.
Source: Ohio Power Siting Board, available at https://opsb.ohio.gov/about-us/resources/solar-farm-map-and-statistics.
Recently denied solar projects
Two solar project applications recently reviewed by OPSB did not receive a green light from the board. In December, the OPSB denied an application by Kingwood Solar that proposed to construct a 175 MW solar facility on 1,200 acres in Greene County. And on January 18, the OPSB denied a Cepheus Energy proposal to construct a 68 MW solar project on 649 acres in Defiance County. Before those two rejections, the OPSB had only previously denied one solar project application—the Birch Solar application rejected last October. In all three instances, the OPSB based its denial on ORC 4906.10(A)(6), stating that the projects would fail to serve the “public interest, convenience, and necessity” due to general opposition.
In the Cepheus application, the board focused on local public interaction and participation, reviewing public testimony and 600 pages of public comments on the project. The board also noted that seven local governments had expressed concern or opposition to the project, including the Defiance Soil and Water Conservation District, Delaware and Sherwood Township trustees, Defiance County Economic Development Office, Defiance County Board of Commissioners, Delaware Township Fire Department, and Sherwood Area Economic Development Corporation.
The interests of these impacted local government bodies was “especially compelling” given that the organizations have the responsibility for preserving the health, safety, and welfare of their citizens, OPSB noted. Stating that there was “general opposition from local citizens and governmental bodies” and that local impacts would outweigh the project’s benefits, the board concluded that the project would not serve the public interest, convenience, and necessity.
The Cepheus rejection is similar to the Kingwood Solar project denied by OPSB in December. In that case, the board reviewed Kingwood’s assertions of the positive economic impacts and renewable energy choices the project would bring the community, then focused on local responses to the project. About 76% of those testifying during a 6.5-hour hearing were opposed to the projects and expressed an overarching concern that the project was not compatible with local land use plans and would “unalterably change the rural nature of the community.” The board also noted concerns by the Citizens for Greene Acres, a local group that intervened in the case, regarding the unique characteristics of the wildlife, parks, recreation, cultural, and historic areas that would be affected and the high density of residents that would reside within 500 feet of the project.
But once again, a critical concern for OPSB was the clear opposition of local governments impacted by the project. Cedarville Township, Xenia Township, Miami Township, and the Greene County Commissioners had all intervened in the case and adopted resolutions opposing the project. Although Kingwood Solar had agreed to address 39 conditions of development that it had offered in a Stipulation agreement, none of the local governments agreed to the Stipulation and instead opposed approval of the project. OPSB concluded that local opposition, “especially as demonstrated by Greene County and the three townships affected by the project,” warranted a conclusion that the project would not serve the public interest, convenience, and necessity.
Now what happens?
It’s typical in a rejection of a utility application for the developer applicant to exercise the right to request a rehearing. That has already occurred for the Birch Solar and Kingwood Solar projects, and we can expect a rehearing request for the Cepheus denial that just occurred on January 19. Interestingly, it was not just the solar developer that requested a rehearing of the Kingwood project application—Greene County, the affected townships, and the Citizens for Greene Acres also requested a rehearing. While those parties stated support for the decision of the OPSB that denied the certificate, they argue that in its findings, OPSB failed to determine that there were many other grounds for denying the certificate such as incompatibility with local land use planning, incapacitation of 1,025 acres of productive farmland, and negative local economic impacts.
Now we await the determinations by OPSB on the rehearing applications. The projects are each on hold, and construction cannot move forward unless the OPSB reverses its decision and approves the applications.
The recent decisions by OPSB leaves us asking a few questions. Does three rejections establish a trend in solar project denials due to community opposition? Did the communities involved in the 34 solar projects approved by OPSB oppose those projects? Do the local communities in the projects that are still pending before the OPSB oppose or support the projects, and how will community voices affect the review of those projects? While we don’t have the answers, we’ll keep monitoring developments in large-scale solar development as we consider these important questions.
Solar and wind energy development is thriving in Ohio, and most of that development will occur on leased farmland. Programs in the newly enacted federal Inflation Reduction Act might amplify renewable energy development even more. The decision to lease land for wind and solar development is an important one for a farmland owner, and one that remains with a farm for decades. It’s also a very controversial issue in Ohio today, with farmers and community residents lining up on both sides of the controversy. For these reasons, when a landowner receives a “letter of intent” for wind or solar energy development, we recommend taking a careful course of action. Here are a few considerations that might help.
Purpose and legal effect of a letter of intent. Typically, a letter of intent for renewable energy development purposes is not a binding contract, but it might be. The purposes of the letter of intent are usually to provide initial information about a potential solar lease and confirm a landowner’s interest in discussing the possibility of a solar lease. Unless there is compensation or a similar benefit provided to the landowner and the letter states that it’s a binding contract, signing a letter of intent wouldn’t have the legal effect of committing the landowner to a solar lease. But the actual language in the letter of intent would determine its legal effect, and it is possible that the letter would offer a payment and contain terms that bind a landowner to a leasing situation.
Attorney review is critical. To ensure a clear understanding of the legal effect and terms of the letter of intent, a landowner should review the letter with an attorney. An attorney can explain the significance of terms in the letter, which might include an “exclusivity” provision preventing the landowner from negotiating with any other solar developer for a certain period of time, “confidentiality” terms that prohibit a landowner from sharing information about the letter with anyone other than professional advisors, “assignment” terms that allow the other party to assign the rights to another company, and initial details about the proposed project and lease such as location, timeline, and payments. Working through the letter with an attorney won’t require a great deal of time or cost but will remove uncertainties about the legal effect and terms of the letter of intent.
Negotiating an Option and Lease would be the next steps. If a landowner signs a letter of intent, the next steps will be to negotiate an Option and a Lease. It’s typical for a letter of intent to summarize the major terms the developer intends to include in the Option and Lease, which can provide a helpful “heads up” on location, payments and length of the lease. As with the letter of intent, including an attorney in the review and negotiation of the Option and Lease is a necessary practice for a landowner. We also recommend a full consideration of other issues at this point, such as the effect on the farmland, farm business, family, taxes, estate plans, other legal interests, and neighbor relations. Read more in our “Farmland Owner’s Guide to Solar Leasing” and “Farmland Owner’s Solar Leasing Checklist”.
New laws in Ohio might prohibit the development. A new law effective in October of 2021 gives counties in Ohio new powers to restrict or reject wind and solar facilities that are 50 MW or more in size. A county can designate “restricted areas” where large-scale developments cannot locate and can reject a specific project when it’s presented to the county. The new law also allows citizens to organize a referendum on a restricted area designation and submit the designation to a public vote. Smaller facilities under 5-MW are not subject to the new law. Several counties have acted on their new authorities under the law in response to community concerns and opposition to wind and solar facilities. Community opposition and whether a county has or will prohibit large-scale wind and solar development are additional factors landowners should make when considering a letter of intent. Learn more about these new laws in our Energy Law Library.
It's okay to slow it down. A common reaction to receiving a letter of intent is that the landowner must act quickly or could lose the opportunity. Or perhaps the document itself states a deadline for responding. A landowner shouldn’t let those fears prevent a thorough assessment of the letter of intent. If an attorney can’t meet until after the deadline, for example, a landowner should consider contacting the development and advising that the letter is under review but meeting the deadline isn’t possible. That’s a much preferred course of action to signing the letter without a review just to meet an actual or perceived deadline.
For more information about energy leases in Ohio, refer to our Energy Law Library on the Farm Office website at https://farmoffice.osu.edu/our-library/energy-law.
Large-scale wind and solar energy development has generated both opportunity and conflict across Ohio in recent years. For several months, we monitored the progress of Senate Bill 52, a proposal intended to address community and landowner concerns about wind and solar facilities. This past Monday marked the effective date for Senate Bill 52, passed by the Ohio Legislature in June, and we've been busy developing new resources to help explain the laws that are now effective.
The legislation expands local involvement in the siting and approval of large-scale wind and solar facilities in several ways:
- County commissioners may designate “restricted areas” where such facilities may not locate.
- County citizens may petition for a referendum to approve or reject restricted area designations.
- Developers must hold a public meeting overviewing a proposed facility in the county where it would locate.
- County commissioners may prohibit or limit a proposed wind or solar facility after learning of it at the public meeting.
- County and township representatives must sit on the Ohio Power Siting Board committee that reviews facility applications.
The new laws also require wind and solar developers to submit decommissioning plans and performance bonds to address removal of a facility at the end of its lifetime.
Our two law bulletins and video series on Senate Bill 52 are now available. The resources work through each part of Senate Bill 52 and explain which types of facilities will be subject to the laws. You'll find the new resources in our energy law library on the Farm Office website at https://farmoffice.osu.edu/our-library/energy-law.
Large "utility-scale" solar energy development is on the rise in Ohio. In the past two years, the Ohio Power Siting Board has approved six large scale solar projects with generating capacities of 50MW or more, and three more projects are pending approval. These “solar farms” require a large land base, and in Ohio that land base is predominantly farmland. The nine solar energy facilities noted on this map will cover about 16,500 acres in Brown, Clermont, Hardin, Highland and Vinton counties. About 12,300 of those acres were previously used for agriculture.
With solar energy development, then, comes a new demand for farmland: solar leasing. Many Ohio farmland owners have received post cards and letters about the potential of leasing land to a solar energy developer. This prospect might sound appealing at first, particularly in a difficult farming year like this one. But leasing land for a solar energy development raises many implications for the land, family, farm operation, and community. It's a long-term legal commitment--usually 25 years or more--that requires careful assessment and a bit of homework.
To help landowners who are considering solar leasing, we've joined forces with Eric Romich, OSU Extension's Field Specialist in Energy Education, to publish the Farmland Owner's Guide to Solar Leasing. The online guide explains the state of solar energy development in Ohio, reviews initial considerations for leasing farmland to solar, and describes legal documents and common terms used for solar leasing. The guide's solar leasing checklist organizes the information into a list of issues to consider, things to do, people to consult, and questions to ask before deciding whether to enter into a solar lease.
The Farmland Owner's Guide to Solar Leasing is available at no cost on our Farm Office website, here. A separate Law Bulletin of The Farmland Owner's Solar Leasing Checklist is also available on Farm Office, here. We produced the guide in partnership with the National Agricultural Law Center at the University of Arkansas, with funding from the National Agricultural Library, Agricultual Research Service, at the United States Department of Agriculture.
Many landowners across the state have been contacted by solar energy developers interested in leasing farmland for utility-scale solar energy production. The combination of improved technology, reduced production costs, the phase-out of federal tax credits, and the willingness of landowners to enter into long-term leases have made 2019 a sunny year for entering into solar leases.
The sudden surge of solar leasing has led to new questions about what this type of lease mean for a landowner, a community, and the future. As these leases may last for 30 years or more, it is important to understand what a utility-scale solar energy development looks like, along with the terms in a solar lease and the implications of signing.
Join OSU Extension Field Specialists Peggy Kirk Hall and Eric Romich on Monday, July 15th for a conversation on solar leasing. Together, the presenters will address solar development trends, converting farmland to solar production, and key considerations to weigh before signing a solar lease. Those interested may choose between one of two sessions:
- Morning session: Madison County from 9:00am to noon at the Red Brick Tavern (1700 Cumberland Road/Route 40, London, Ohio). Breakfast will be provided!
- Afternoon session: Greene County from 2:00pm to 5:00pm at the Greene County Extension office (100 Fairground Road, Xenia, Ohio).
Each meeting will cover the same information. Registration is required, but there is no cost to attend. To register for the morning session in Madison County, email Griffith.firstname.lastname@example.org or call 740-852-0975. To register for the afternoon session in Greene County, email Corboy.email@example.com or call 937-372-9971.
Click HERE to view the official flier. In the meantime, if you want to learn more about some of the documents and major considerations that will be discussed at the meeting, click HERE. If you want to learn more about some common solar lease terms, click HERE.
Here’s our gathering of recent agricultural law news you may want to know:
- The Ohio Department of Agriculture will hold a hearing on April 5, 2018 at 9 a.m. to receive testimony on proposed amendments to the Agricultural Pollution Abatement Program. The amendments are largely alterations of the format and structure of the rule to allow for easier reading, and do not impact the substance of the rule in many situations. Two changes to the substance of the rules is the addition of a duty to prevent pollution from “residual farm products,” which means bedding, wash waters, waste feed, silage drainage and some mortality composting, and clarification of the investigation and enforcement process. Read the ODA’s summary of the changes here. Hearing information is here.
- Considering solar leasing on your farm? If so, sit in on the Solar Leasing for Agricultural Landowners webinar on April 4 at Noon. The free webinar features our colleague Prof. Shannon Ferrell of Oklahoma State, who will remove some of the mystery of solar leasing for landowners. More information is here.
- Several groups have filed a lawsuit against the USDA for its March 12 withdrawal of the Organic Livestock and Poultry Practices rule finalized during President Obama’s tenure. The rule would have established animal welfare standards for organic producers. Read more about the organizations’ claims in this post by our Ag & Food Law Consortium partner, the National Sea Grant Law Center.
- Another Consortium partner of ours, Penn State Law, has prepared a comprehensive summary of the current status and legal developments for the problematic Rover Pipeline that is affecting many landowners in Ohio and other states. The summary is here.
- Ohio legislative activity:
- The Apiary Immunity bill, H.B. 392, passed the Ohio House on March 21 and was introduced in the Ohio Senate on March 26. The bill proposes limited liability for registered apiary owners.
- Rep. Fedor (D-Toledo) and Rep. Sheehy (D-Toledo) introduced HCR 25, a resolution encouraging the U.S. EPA Administrator to declare the open waters of Western Lake Erie as impaired, consistent with the Ohio EPA’s recent water quality report we reported on earlier this week.