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For the second time in two years, members of the General Assembly are looking to take control of solar policy away from counties and cities. A proposed solar bill would give final approval of projects to a newly created Virginia Energy Facility Review Board. 

The bill, which was heard by the Commission on Electric Utility Regulation on Monday, Jan. 6, hasn’t been officially introduced yet. That will happen later this week in the Virginia Senate, when the Assembly convenes. Monday’s hearing was basically a reading of the bill and, with approval given by a commission majority of 7 of the 12 members, it moved forward to be discussed in the Assembly during this coming session. 

Virginia State Sen. Scott Surovell, who serves as chairman of the commission, said a change was needed in order to help investors. 

“If we continue to have the completely unfettered free market, whatever you want to call it system, where every locality can do whatever they want right now, we’re gonna continue to have 80% of all solar projects being rejected,” Surovell said during Monday’s hearing. “All kinds of people who want to invest in this state are going to stop investing in this state because the system is so incredibly unpredictable.”  

What does the solar bill do? 

So what does the solar bill do? As mentioned, it creates the Energy Facility Review Board. That in turn would be put in charge of conducting analysis and studying policy options, reviewing all regional energy plans, all local comprehensive plans, like the ones Prince Edward and Buckingham are currently working on, and any local solar and storage ordinances, to make sure they go hand in hand with the Clean Economy Act. Approved by the General Assembly in 2020, the Clean Economy Act requires just under two-thirds of the state’s electricity to come from solar or wind energy by the end of 2035. This Energy Facility Review Board would be focused on making that happen, having the authority to “facilitate the responsible siting of critical interconnection projects in the Commonwealth.” 

What does that translate to? Any developer looking to build a solar project wouldn’t just submit to their local city or county. Instead, they would also file with the Review Board. The Review Board would check to see if the project complies with the solar or energy ordinance in the county or city, while also considering “the Commonwealth Clean Energy Policy, certain regulations adopted by the State Air Pollution Control Board, the certain renewable portfolio requirements, and any other information it deems relevant,” the bill’s summary says. 

Flagging a couple sections for review

Beyond that, it’s worth drawing attention to a few key parts in the bill, which gives the Review Board some very clear powers. 

The bill “provides that the Review Board has the discretion to disregard any unreasonable restriction, in the local ordinance on the installation of the critical interconnection projects or the building of structures that facilitate the installation of critical interconnection projects.” That’s a long paragraph, but basically, it means exactly what it sounds like. If the Review Board thinks a city or county’s solar ordinance is too unreasonable in how it restricts solar, then it would have the authority under this bill to basically ignore those rules when issuing an opinion. 

Why does that matter? It’s a legal issue. Let’s say a massive solar project comes to Buckingham County and gets rejected, as it doesn’t meet the requirements laid out by the county. That developer can then sue Buckingham in Circuit Court and here’s where the Review Board comes in. Under this new bill, “in any such appeal, the opinion of the Review Board is presumed to be correct.” 

Basically, the county or city ordinance is considered to be wrong and the Review Board is what the court would consider factually correct. The only way to overcome that would be to present “evidence demonstrating to the satisfaction of the court that the locality’s decision to grant or deny a project or to include the challenged conditions was consistent with provisions in locality’s ordinance that are not unreasonable restrictions.” 

So to sum up, a locality would have to prove in court their ordinance isn’t unreasonable in order to win. If not, then the developer would be given the permit they had requested. 

There’s another clause in the bill which also automatically gives developers what they requested. When the Review Board issues an opinion, a clock starts ticking. Before any legal battle even starts, a city or county has to put together basically a written argument explaining why their solar restrictions aren’t unreasonable, to be given to the Review Board. If for whatever reason the city or county doesn’t put that paperwork together within 180 days or six months, it becomes an automatic approval “of the zoning change, variance, special exemption, special use permit, or conditional use permit.”

In Monday’s meeting, there was some opposition about the bill in its current form.

“We are creating a review board with truly extraordinary powers,” said Virginia State Sen. Mark Obenshain. “They have the authority to hire staff and hire consultants to do all of this work and I have no idea how much it’s going to cost or how big an organization this is going to be. There’s (even) language in there that allows them to take private contributions from organizations.”

Local, state officials oppose the solar bill

A number of local, regional and state officials have come out against the proposal. In Prince Edward, supervisors listed fighting this as one of their top legislative priorities, during their December meeting. 

“Like solar or not, and there are some counties around us that have embraced solar as a means to generate economic development, we feel like that should be a local choice,” said Prince Edward County Administrator Doug Stanley. “It should be up to the board of supervisors.” 

Stanley, Supervisors Board Chair Pattie Cooper-Jones and Vice Chair Bill Jenkins also met with Del. Tommy Wright and Sen. Tammy Mulchi, both of whom expressed their own opposition to the bill, which they see as unnecessary. 

“I will vote no on House Bill 636 or any other legislation that gives power to the State Corporation Commission to take over the siting of solar projects from the local government,” Wright told The Herald. “I firmly believe that decisions regarding solar energy projects should be made at the local level, where county officials and community members have a better understanding of their unique needs and circumstances. Empowering local governments to make these decisions ensures that the interests of the residents are prioritized, and that the development of solar energy projects aligns with the county’s vision for growth and sustainability.”

House Bill 636 was the attempt last year to do roughly the same thing.  Mulchi echoed that argument, basically saying she would be a hard no if it came to a vote. 

 “I have not and will never support legislation that removes localities’ decision-making power regarding solar,” Mulchi said. “These decisions are best made by the people who live in the areas affected.”

So what happens now? 

Up next, we wait and see if the bill is sent to a committee in the House or Senate during this first month of the Assembly session. But first, that’s going to require the House and Senate to meet for more than 10 minutes. This year’s session has been pushed back to Monday, as Richmond is still struggling with water problems after Winter Storm Blair earlier this week.