EXPERT AVAILABLE: State Renewable Energy Laws Increasingly Threaten Local Autonomy

MU law expert’s proposal encourages use of renewable energy while keeping land use authority at the local level

April 19th, 2011

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

COLUMBIA, Mo. – In an era of rising energy prices and growing concerns over climate change, the demand for private renewable energy devices such as small wind turbines and solar panels has steadily increased.  Many local governments have adopted structure height restrictions, architectural review guidelines, and other land use controls that can restrict landowners’ ability to install small-scale renewable energy devices on their properties.  Municipalities and community associations often impose these restrictions as a way to keep property values high.

Troy Rule, an associate professor of law at the University of Missouri School of Law and a renewable energy law expert, says that multiple states have now enacted legislation invalidating these local land use restrictions in an effort to promote renewable energy. Rule believes that, although such laws are well-intended attempts to promote distributed renewable energy, they can unjustifiably limit the autonomy of local communities.

“Local land use laws are often tailored by individual communities to reflect the community’s geographic features and the unique local preferences of the residents,” Rule said. “Overriding these laws with a broad state-level mandate applies a one-size-fits-all approach to land use regulation that can be unsuitable for many communities in a given state.”

Several states, including California, Delaware, Indiana, Nevada, New Hampshire, Vermont, and Wisconsin, have enacted legislation invalidating or limiting local land use controls to the extent that they hinder the installation of small wind turbines, solar panels, or other renewable energy systems.  Rule believes it is possible to overcome local regulatory barriers to distributed renewable energy without stripping community governments of their land use authority.  He advocates designing state legislation to incentivize communities to voluntarily accommodate small turbines and solar panels in their land use controls rather than forcing communities to do so.

“This plan promotes states’ interests in supporting and increasing the use of renewable energy devices; yet, it also preserves local autonomy,” Rule said.

Rule’s “Green Community Tax Credits” proposal would reward landowners in any community that modified its land use laws to allow small renewable energy devices. The program would be established through state legislation featuring a model municipal ordinance and model subdivision covenant amendment that, if adopted at the local level, would reduce regulatory barriers to installing small wind turbines or solar panels.  Communities that voluntarily adopted these model provisions would become “Green Communities”, and property owners in those communities would receive modest credits on their state property taxes.  Rule’s program also would provide for one-time grants to local governments in newly certified Green Communities as a further incentive for local officials to consider the issue.

“State legislatures aren’t trying to usurp land use authority from local governments when they override local law to promote renewable energy; they think they are doing the right thing,” Rule said. “Still, these state laws can frustrate local government officials who feel like state legislators don’t necessarily have individual local communities’ best interests in mind. This plan would keep the power at the local level.”

A full description of Rule’s Green Community Tax Credits proposal will be published this month in the Utah Law Review. Troy Rule joined the University of Missouri law faculty as an Associate Professor of Law in 2009. Prior to entering law teaching, he was an attorney at K&L Gates LLP in Seattle, where his practice focused primarily on commercial real estate transactions and wind energy development. He graduated with honors from the University of Chicago Law School in 2005, where he served on the Chicago Journal of International Law.