One year after Clean Economy Act’s passage, solar land use tensions linger

Spotsylvania County: 6,350. Fauquier County: 3,500. King William County: 1,262.

Each number recited by Del. Charles Poindexter, R-Franklin, to a House panel during the second week of the 2021 General Assembly session represented the number of acres that local governments in Virginia have approved for solar projects to date. 

To some, the tallies are a point of pride for a state that until recently solar developers saw as one of the toughest markets on the East Coast. To others, they are nothing short of a threat to a way of life that centers on agriculture and timber. 

“These things will not be built, Mr. Chairman, in Reston. They won’t be built where our Democratic colleagues live. They’ll be built out here in rural areas and with untold consequences,” House Minority Leader Todd Gilbert, R-Shenandoah, said during a Jan. 27 hearing. “It’s going to completely transform the character of places that we know and love. And I’m not sure that we have fully thought through the ramifications of these policies.” 

Over the past five years, tensions in Virginia between renewables and other environmental goals like conservation have been growing. Falling solar prices and a growing policy push away from fossil fuels linked to climate change led to an explosion of project proposals across the state’s more rural areas beginning around 2018, with particularly high-profile fights over solar farms in wealthier counties like Spotsylvania and Culpeper. By the end of 2019, according to one developer’s accounting, plans were underway on more than 17 gigawatts of solar projects.

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Then in 2020 came the Democrat-driven Virginia Clean Economy Act, a landmark environmental bill that calls for the decarbonization of the state’s power grid by 2050, partly through the development of almost 17,000 megawatts of solar. 

The law, while building on a solar boom already underway, locked in a market for solar. It also, by committing the state to dedicating hundreds of thousands of acres to arrays, sparked unease among many rural communities, where the combination of large tracts of cheap land and access to transmission lines ensures the bulk of these projects will be sited. 

“We are seeing larger and larger applications for utility-scale solar projects on farmland in the Valley counties instead of lots of smaller projects on brownfields, parking lots, rooftops, marginal lands, the places where most Virginians I think would prioritize solar energy development,” said Kate Wofford, executive director of the Alliance for the Shenandoah Valley, during a hearing this January. “And in general, it’s on these very large projects that we see more negative impacts to water quality, rural character, farmland, for example. So in our view, increased scrutiny on these larger projects just seems like good public policy.” 

This session, much of the scrutiny has come from Republicans. Poindexter’s House Bill 2023, which failed in committee, would have required localities to report how many acres of farm and forestland were being converted to wind or solar generation. House Bill 2067 from Del. Michael Webert, R-Fauquier, proposed lowering the ceiling for solar projects allowed to bypass a State Corporation Commission review in favor of a more streamlined process overseen by the Department of Environmental Quality. And Del. Nicholas Freitas, R-Culpeper, suggested scrapping the VCEA altogether in a bill spearheaded by the Suburban Virginia Republican Coalition, a political action committee that has been running a “Repeal VCEA” campaign since the fall.

The proposals, and the responses from Democrats who control the legislature and the governor’s office, illustrate the challenges that continue to dog Virginia’s transition to renewables, one closely tied to the growing rural-urban divide and the Republican-Democratic split that parallels it. 

Republicans control many of the regions seeing the most solar development. But they also, with the exception of Sen. Jill Vogel, R-Fauquier, and Del. Terry Kilgore, R-Scott, uniformly voted against the Virginia Clean Economy Act, and most either have publicly refused to acknowledge that climate change is linked to carbon emissions or have avoided weighing in on the issue.

Behind the scenes, many Democrats and lobbyists for environmental groups this session have expressed skepticism about the intent underpinning bills addressing solar land use. The skepticism has at times spilled over into hearings: in response to the acreage bill put forward by Poindexter, an adamant opponent of the VCEA, Chesapeake Solar and Storage Association lobbyist Chip Dicks told lawmakers, “I’m not sure of the ultimate purpose of what the data would be used for.” 

Harry Godfrey, executive director of Virginia Advanced Energy Economy, one of the main architects of the Clean Economy Act, told the Mercury that he “understand(s) that there are people of good faith that have only legitimate concerns around land use.”

“The challenge that we face is that all too often we’ve seen other actors employ those issues as a cudgel to thwart advanced energy development, regardless of its merits,” he said. “At times it can be hard to distinguish between the two.”

Who decides where a solar farm should go?

All three of the solar land use bills put forward this session were struck down by Democrat-led panels. But while Poindexter’s and Freitas’s bills were swiftly killed in subcommittees, Webert’s appeared to strike a deeper chord among lawmakers on both sides of the aisle. 

That proposal, House Bill 2067, would have decreased from 150 to 50 megawatts the maximum size of a solar project eligible to receive a state permit through DEQ’s permit by rule program. Created in 2012, this program was designed to allow small to medium-sized solar projects to bypass the typical State Corporation Commission approval process, which includes legal testimony before SCC judges, for a faster and more streamlined process overseen by DEQ.  

Webert has argued that while the permit by rule program may be adequate for solar projects covering up to 500 acres — arrays of roughly 50 megawatts, with one megawatt of capacity requiring anywhere from seven to 10 acres of land — it isn’t thorough enough for larger ones. 

“We just felt that for us, you know, if it’s over 500 acres, it shouldn’t just be a checklist,” said Webert. “It should go through the SCC process to look at all the impacts.” 

Dan Holmes, director of state policy for the Piedmont Environmental Council, agreed: “We support solar and actually this legislation,” he said. “This is not a criticism of DEQ or the permit by rule, nor is it a criticism of solar energy. It’s about placing larger facilities where they belong, in the process they belong: the SCC process.” 

In Virginia, however, determining where facilities belong has largely been left in the hands of the state’s 95 counties and 38 independent cities. It is these local governments — boards of supervisors, city councils and planning commissions — that oversee the bulk of siting decisions through reviews of zoning and local comprehensive plans, the non-binding blueprints for land use that all localities are required to craft every 10 years. 

“The approval of large solar arrays starts on the local level, and that is largely where the decision making around finding a balance between clean energy and land conservation occurs,” Alena Yarmosky, a spokesperson for Gov. Ralph Northam, wrote in an email. 

And while state permits, whether from DEQ or the SCC, provide another layer of scrutiny for projects, they don’t trump local ones: developers must seek both. 

The more streamlined permit by rule process has incentivized most of these developers to keep their solar farms under 150 megawatts, leaving only the largest proposals in the SCC’s hands. Ken Schrad, director of the SCC’s Division of Information Resources, said the commission has only heard three applications for solar projects, with the most significant being sPower’s 500 megawatt Spotsylvania farm, touted at the time of its proposal as the biggest one east of the Rocky Mountains.

Webert has contended that more ought to be placed in the commission’s hands: “With the SCC, it’s basically a formal legal proceeding where there’s a cross-examination, because the SCC commissioners are actually judges,” he said during one hearing on his proposal. “So you can push for additional mitigation and other things.” 

But at a later hearing on Jan. 27, Del. David Bulova, D-Fairfax, questioned whether a tightening of the permit by rule program’s size limits would solve the problem, saying “this is not the way to go ahead and deal with that concern.”

What discretion the SCC has to reject solar applications is itself nebulous. While the commission is charged with considering economic and environmental impacts of a project — the latter reviewed by DEQ through a memo of understanding — approval is contingent on two criteria laid out in state code: that the project not hurt electric reliability and that it not be “otherwise contrary to the public interest.” The same section of code specifies that the commission must recognize any other permits issued by state and local authorities related to issues like environmental impacts, building codes, transportation and public safety “and shall impose no additional conditions with respect to such matters.” 

A push for ‘thoughtful regulation’

Still, while lawmakers ultimately rejected Webert’s proposal, many acknowledged that siting concerns linked to the state’s solar rollout linger. 

Del. Kathy Tran, D-Fairfax, called some of the permit by rule requirements “loosey-goosey.” And Del. Sally Hudson, D-Charlottesville, hit back at arguments from solar advocates that tightening the permit by rule regulations would derail Virginia’s progress toward decarbonization.

“Something we have to underscore is just because a project is essential to the survival of humanity does not mean that that industry is not subject to thoughtful regulation,” she said. 

The need to rework parts of the permit-by-rule process has been widely acknowledged within DEQ and the solar industry. The agency in 2019 began formally amending the program’s regulations, guided in part by an advisory panel of developers, environmental groups and representatives of utility and energy firms. A final version of the regulations has been under review by Northam’s administration for more than three months.

“I want to give those regulations a chance to go public for us to assess them and see if then, at the end of the day, this process is the best process or not,” said Tran.