Pennsylvania’s lack of regulation on solar may be problematic for farmland

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solar array Pennsylvania
A solar array is installed in Allegheny County, Pennsylvania. (Rachel Wagoner photo)

Utility-scale solar is one of the growing threats to prime farmland in Pennsylvania, and it has the attention of state lawmakers.

“While we recognize the importance of renewable energy and the potential for supplement income for family farms and other agricultural operations… we must also weigh against the potential to lose one of our most valuable resources,” said state Sen. Elder Vogel, during a hearing Sept. 21, hosted by the Pennsylvania Senate Agriculture and Rural Affairs Committee.

Pennsylvania preserved 600,000 acres of farmland, the most of any state in the country. Preserved farms cannot be used for commercial scale solar development, said Doug Wolfgang, director of the state’s farmland preservation program.

But there are still 1,400 farms that have applied to the preservation program, and are waiting for approval and funding. Wolfgang told the committee any of those farms-in-waiting could decide instead to lease farmland to a solar development instead.

“The department bottom line recommends that careful consideration take place when siting utility-scale solar on or near prime farmlands,” Wolfgang said. “Specifically, we recommend that prime farmland soil remains available for agricultural production and that placement of solar installations instead take place on rooftops, impervious surfaces or on less productive soils.”

The problem is there is no mechanism at the state level to control siting of utility-scale solar projects. Approval for utility-scale solar projects in Pennsylvania is done entirely at the local level, through township and county-level zoning and planning ordinances.

Comparisons

Tom Gilbert, campaign director for energy, climate and natural resources with the New Jersey Conservation Foundation, said New Jersey passed legislation earlier this year to create an incentive program to protect high value agricultural soils and land prioritized for farmland preservation.

The legislation directs the New Jersey Board of Public Utilities to work with the New Jersey Department of Environmental Protection and state’s Agricultural Development Committee to develop siting criteria for utility-scale solar to steer solar development to already disturbed or marginal lands, Gilbert said.

Projects located on prime farmland of statewide important soils within agricultural development areas cannot receive solar incentives.

“We believe this can be a model for Pennsylvania and other states to consider,” he said.

The New Jersey Conservation Foundation preserved 125,000 acres of open space and farmland.

Other states too are grappling with how to control utility-scale solar projects. Ohio passed legislation this summer to allow more local control over utility-scale solar projects, anything over 50 MW. The legislation goes into effect on Oct. 11. Instead of the approval for these projects resting solely with the Ohio Power Siting Board, the bill also gave power to county commissioners.

Guidance given

Wolfgang said the farmland preservation office provided the County Commissioners Association of Pennsylvania some guidance on language that could be used by the county planning office or municipalities to place limits on solar development.

The language would limit the development of solar on prime farmland soils if at least half that tract was prime farmland. The exception would be if the areas that are converted to solar take place on marginal parts of the farm or on rooftop or other impervious surfaces, Wolfgang said.

“We recognize there is some merit to allowing farmers to take part in solar and to take advantage of those opportunities if it doesn’t affect the viability of the farm,” Wolfgang said. “We do also share those concerns about land use. Zoning is the way, I believe, to get at it, but I’m not quite sure what that would mean in terms of legislative efforts.”

At a previous hearing on utility-scale solar, hosted jointly by the ag and rural affairs and local government committees, a Penn State University law professor said that most zoning ordinances in the state provide no guidance on solar developments.

A team at Penn State Dickinson Law completed research on 2,500 local zoning ordinances. Results showed that only 13% of zoning codes addressed solar at all.

Bonding

These large scale renewable projects reminded some lawmakers of the shale gas boom of a decade ago. State Sen. Gene Yaw said he wants to avoid the issues landowners faced in dealing with the oil and gas industry. At least with oil and gas leases, the farmer can still use the surface of the leased land and the projects are bonded with the state.

“Solar arrays are basically putting a factory on top of the land,” Yaw said. “That seems to be absolutely contrary to where we want to go [with farmland preservation].”

Brook Duer, staff attorney for Penn State Law’s Center for Agricultural and Shale Law, said in his testimony that solar projects are like putting a power plant on top of leased land. It puts the landowner in a “an unusual position of being a sophisticated commercial landlord,” he said.

The property is not owned by the party that borrows millions to capitalize and operate the solar project, but the solar facilities on the surface are often pledged as collateral for the capital, Duer said. The terms of decommissioning of such projects is dealt with under each individual contract.

“This is not like leasing your farm for someone else to grow crops,” Duer said.

Duer pointed to Ohio’s Senate Bill 52 and recent legislation in New York that aims to put more comprehensive controls in place over siting and bonding of commercial solar projects. Ohio’s new law requires a decommissioning bond payable to the state and sets a 12-month decommissioning plan. New York enacted legislation in spring 2020 that established the Office of Renewable Energy Siting to site and approve grid-scale solar developments.

Duer said requiring a bond payable to the government to help with decommissioning and remediation of solar sites in Pennsylvania wouldn’t be effective. The parties to whom the bond is written must also be the party who has an obligation to remediate. In the legal climate in Pennsylvania, that’s the landowner, Duer said.

“If we were going to have a requirement under law that a bond be payable to a government entity, you’d have to couple that with some obligation for the government entity to get involved and clean up,” he said.

Yaw introduced legislation earlier this year to put new bonding requirements on renewable energy projects.

(Reporter Rachel Wagoner can be contacted at 800-837-3419 or rachel@farmanddairy.com.)

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Rachel is a reporter with Farm and Dairy and a graduate of Clarion University of Pennsylvania. She married a fourth-generation beef and sheep farmer and settled down in her hometown in Beaver County. Before coming to Farm and Dairy, she worked at several daily and weekly newspapers throughout Western Pennsylvania covering everything from education and community news to police and courts.

1 COMMENT

  1. Great article, Rachel. You are exposing what I have been saying all along – we are losing prime ag land for solar arrays. Most earns have “unusable” land, large storage buildings, etc. Good places for solar. But open, tilled land is much easier to construct upon. And companies are waving big dollars at struggling farmers to get it, often leaving the landowner responsible for any future disposal. Our governor in PA ( who often needs a proctologist to find his head) is pushing his solar agenda come hell or high water, with no regard or concern to the loss of valuable ag land. Pennsylvania needs regulation in the solar industry, just as it has in almost every other.

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