by Barrett Baker
Energy law encompasses a range of topics, including regulatory compliance and permitting; renewable energy incentives and subsidies; grid access and infrastructure; environmental impact assessments; carbon credits and emission trading; land use and zoning laws; community and indigenous rights; and water use and water rights.
Broadly speaking, areas of energy rights law involve two types of practice: regulatory attorneys who deal with permitting and approvals, and attorneys involved with compliance and regulations issues on the federal, state or local level.
To get a better idea of what’s involved on the legal end when it comes to generating, capturing and transmitting energy from one source to the overall grid, we spoke with Stephen Romine, who is a partner with the law firm of Williams Mullen here in Coastal Virginia. Romine has more than 40 years of energy law experience, with a concentration on real estate which would typically involve leasing, buying and/or acquiring property.
According to Romine, and not surprisingly, a lot of what’s involved with energy law in Virginia today takes place in the renewable energy space. Historically, looking at energy on the production side, most of our power was previously produced by coal-fired plants. In the last five to 10 years, there has been a large movement toward decarbonization, which is steering production methods away from fossil fuels and toward renewable energy.
Currently, one of the largest “old school” segments of energy production today is natural gas, followed by nuclear power. And while the United States hasn’t built a nuclear power plant in the previous 30 or 40 years and there has been a hiatus on the production of nuclear energy, there are conversations indicating that smaller plants may come back online again in the near future.
In the meantime, the landscape on renewable energies is growing, including hydro, solar, wind and battery technology (hydrogen, fuel cells, etc.). In 2020, the Virginia General Assembly passed the Virginia Clean Economy Act that adopted mandated goals to move power production away from coal and oil-based production to renewables. Those mandates require electric utility companies to completely revamp their power production and move away from fossil fuels between 2040 and 2045.
Romine, who is a commercial real estate attorney, has been involved in several utility scale solar projects encompassing thousands of acres of land. And even though the emerging technologies may be different, he says the actual process is very similar.
“I would say the advancement of technology hasn’t really impacted what I do,” he explains. “Because if you look at a classic land-use case, typically they run sort of the same course.”
The checklist of what’s involved normally includes evaluating locality zoning structures to see where a project can be situated and if it falls within zoning districts. If not, the space may need to be rezoned, and a Land Use permit may need to be obtained. That process involves filing an application then locality or municipality develops a staff report recommendation that evaluates the application and the potential impact of the project. Once the report is issued, it goes to a Planning Commission consisting of an appointed group of citizens. The Planning Commission reviews the project for compliance with the land-use regulations of their municipality. They then make a recommendation to the Board of Supervisors who will hold public hearings.
Based on that feedback, the project may be approved, denied or deferred. If approved, the plan is submitted to the state for continuance, particularly if there is what’s called a “gen-tie” line involved that connects the power generation facility with the larger electric transmission grid. Then the project needs to be submitted to the grid operator for approval.
“There are multiple levels involved in getting a project approved, and they don’t always run on a parallel path,” says Romine. “They kind of run sequentially, and at any point along the way you can hit roadblocks and expansive demands from any given party. So, these projects can take years and lots of dollars.”
In Romine’s experience, one of the toughest hurdles to clear usually involved ad hoc citizen groups that oppose the proposal, no matter what the facts show. By the time a project gets to a point where the citizens have a say, it has gone through a number of different environmental assessments, approvals and permits through the Virginia Department of Environmental Quality (DEQ) and any issues have already been addressed.
“When it comes to a solar project, if you can’t see it, hear it, or smell it and there’s no environmental impact, what’s the issue?” wonders Romine. “The problem is, when a group gets locked in against something that’s not even based on reason, it’s really hard to convince them otherwise with facts.”
Typically, at least in solar installations, there are buffers between the solar array and the general public, so anyone in the general vicinity of it usually won’t even know it’s there. However, given the layers of complexity in business dealings, the process to get everyone onboard demonstrates there are a lot of nuances and factors to consider when it comes to legal matters, including Energy Law. This validates why it’s important to have an attorney who not only specializes in the specific field of endeavor but understands the complexities of every facet of the process.
And for the benefit of all, hopefully a common ground between all parties involved can be found and endorsed.
