Land & Renewables Connection
Proposed Pennsylvania Solar Energy Legislation Shines Light on Legislators’ Perspectives
Oil and gas development has provided an economic benefit to Pennsylvania’s rural landowners and solar energy development offers substantial benefits as well. Undoubtedly, oil and gas development impacts the surface of property with well pads and related infrastructure. Solar energy development may have an even greater impact on the surface of property due to a larger footprint. Proposed legislation in Pennsylvania’s General Assembly is identifying some of the parameters of the ongoing debate about solar energy development and its impacts on the Commonwealth’s farmland.
On June 28, 2023, Senate Bill 798 was introduced and referred to the Pennsylvania Senate Agriculture and Rural Affairs Committee. Senate Bill 798 is titled “Providing for solar energy facilities on certain land; imposing powers and duties on the Department of Agriculture; and providing for a tax credit.” This proposed legislation would attempt to accomplish a number of objectives - and this discussion focuses on the treatment of agricultural lands for solar energy development.
- Section 3, Location of solar energy facilities states that “A solar energy facility may not be located on agricultural land with soil that is deemed Class 1 or Class 2 within the Land Capability Classification System of the Natural Resource Conservation Service.”
- Section 4 provides a mechanism for the Pennsylvania Department of Agriculture to review proposals for solar facilities on farmlands to make determinations about whether the proposed farmlands where the project would be located are either Class 1 or Class 2.
House Resolution 224, introduced on September 29, 2023, comes from a different perspective. It is a Resolution “Directing the Joint State Government Commission to conduct a study and establish an advisory committee to review and analyze the opportunities for and benefits of agrivoltaic farming systems in this Commonwealth.” The text of H.R. 224 observes the challenging economic circumstances facing Pennsylvania farmers, finding that “Pennsylvania lost 6,000 farms between 2012 and 2017” and suggesting that “[d]ual use of agricultural land with agrivoltaic farming can be a farmland preservation tool.” The draft Resolution would “direct the Joint State Government Commission to conduct a study and establish an advisory committee to review and analyze the opportunities for and benefits of agrivoltaic farming systems in this Commonwealth.” As part of this process. House Resolution 224 identifies that the Joint State Government Commission, “in conducting the study, include findings and recommendations regarding: (1) A comprehensive accounting of which State, county and local agencies utilize or would benefit from agrivoltaic farming systems. (2) Legislative solutions to boost agricultural productivity. (3) Suggestions to stabilize rising input costs for farmers. (4) Methods to facilitate the complementary nature of agrivoltaic farming and solar energy production.”
At first glance, Senate Bill 798 and House Resolution 224 seem to be at-odds with one another. Senate Bill 798 seems to be aimed at preserving prime farmland from solar energy development, whereas House Resolution 224 indicates an intent to study a means of solar development that only occurs on farmland. But, a closer inspection reveals that both pieces of proposed legislation are concerned with agriculture’s coexistence with solar energy development.
Both Senate Bill 798 and House Resolution 224 are predicated on the reality that agriculture is an important part of Pennsylvania’s economy. Solar energy development projects can have a large physical footprint, so Senate Bill 798 attempts to preserve prime farmland from being converted into solar energy development sites. While this can protect prime agricultural land from being lost under a sea of solar panels, it can also deprive farmers of potential income from leasing lands for solar energy development. To this end, House Resolution 224 recognizes the potential economic benefit to farmers that can flow from solar energy development and focuses on the potential of agrivoltaic farming systems that could potentially allow farming and solar energy development to coexist on the same land.
Agrivoltaic farming and grazing generally refers to the simultaneous use of property for solar energy development and traditional agriculture. With agrivoltaic farming/grazing, solar arrays are installed on farmland but, instead of removing that land from cultivation because it is physically beneath solar arrays, crops are still grown on the land, or cattle graze beneath the solar panels. In theory, agrivoltaic farming benefits both the solar energy development and the farmland because shaded crops under the solar arrays require less water than if exposed to the sun all day and those crops also keep the back of the solar panels cooler than if the ground were just bare soil, thereby improving the solar panels’ efficiency. Agrivoltaic development is fairly new and is not widespread, but it has the potential to address the concerns that appear to motivate Pennsylvania’s Senate Bill 798 and House Resolution 224 by offering a revenue stream to farmers through solar energy development, but still keeping prime agricultural lands in production to maintain Pennsylvania’s vital farm economy.
Solar energy development can provide benefits to landowners, particularly farmers, by providing another revenue source. But, solar energy development can potentially occupy large areas of productive cropland or pasture for decades. If a solar energy developer has proposed a solar energy lease to you, contact Houston Harbaugh Renewable Energy attorney Brendan A. O’Donnell at 412-288-2226 or odonnellba@hh-law.com
About Us
These are cutting edge legal issues. The law of the future. Renewable energy, zoning and land use issues will shape the future of growth in the region. Houston Harbaugh’s Renewable Energy, Zoning and Land Use practice focuses on assisting clients maximize and protect the value of their properties, whether related to renewable energy, commercial or residential development opportunities.
As renewable energy becomes more reliable, efficient, inexpensive and technologies associated with carbon capture and storage advance, Pennsylvania, West Virginia and Ohio are in position to benefit from these two parallel energy development opportunities. The region’s geographic location and existing infrastructure presents unique opportunities for property owners to participate in solar, wind, geothermal, other renewable energy developments, as well as for carbon capture, carbon sequestration and carbon storage projects. Additionally, legacy oil, gas and coal infrastructure may be repurposed and reused in connection with new energy developments.
With any development, whether renewable energy, commercial or residential, there are a host of zoning and land use issues that directly impact the most basic parts of daily life of both individuals and communities. Determining where and how land can be developed impacts property ownership, property value, quality of life and the economic development and wellbeing of communities. Zoning and land use issues are, on one hand, matters of local concern but, on the other hand, potentially subject to county or state regulations.
The Renewable Energy, Zoning and Land Use practice draws on Houston Harbaugh attorneys’ experience in energy, oil and gas and real property matters to advance clients’ interests in both transactional and litigation matters. Houston Harbaugh’s Renewable Energy, Zoning and Land Use attorneys assist clients with matters including:
- Solar energy leases;
- Wind energy leases;
- Pore space ownership for carbon capture / carbon sequestration / carbon storage, geothermal and waste disposal;
- Ownership of legacy oil, gas and coal infrastructure for repurposing/renewable energy usage;
- Compliance with existing solar, wind and renewable energy leases;
- Surface and subsurface accommodation between competing land uses;
- Variance, Special Exception and Conditional Uses applications/hearings;
- Land use appeals;
- Eminent domain
Brendan A. O'Donnell
An attorney in Houston Harbaugh’s Oil and Gas Practice, Brendan O’Donnell has represented oil and gas owners across Pennsylvania in a wide array of oil and gas matters for over a decade. This experience has involved not only the Marcellus shale and the Utica shale, but more traditional oil and gas development as well.
Brendan maintains a diverse practice, representing clients in all matters involving oil and gas spanning the transactional and litigation realms. On the transactional front, Brendan routinely assists landowners with negotiating oil and gas leases, pipeline rights of way and surface use agreements and subsurface easements related to horizontal drilling as part of Marcellus and Utica shale development. Brendan also frequently reviews royalty statements and oil and gas ownership issues as well as preparing deeds and title curative documents. Brendan also maintains an active litigation practice, representing clients in state and federal courts, as well as private arbitration matters. This litigation often involves title disputes, pooling and unitization challenges, lease termination questions and royalty/ post-production cost claims.
Assisting clients across the spectrum from contract negotiations through litigation and appeals gives Brendan valuable first-hand knowledge about how oil and gas agreements are prepared, how disputes arise and how courts resolve these issues. Brendan stays up-to-date on developments in oil and gas law and writes frequently on the these topics. Additionally, as alternative energy generation like wind and solar are increasingly being developed in oil and gas producing regions, Brendan assists clients with navigating the interplay between these complex energy developments and evaluating solar agreements.
Brendan complements his oil and gas practice by representing property owners, including oil and gas owners, in zoning and land use matters. Brendan has represented clients before municipal bodies and in appeals to court. Brendan is also active in the firm’s Energy and Environmental Law Practice.
Regardless of the type of representation, Brendan prides himself in providing clients with realistic, pragmatic advice. Hiring an attorney is an investment and Brendan focuses on how he can provide value to clients.
Outside of the office, Brendan serves on the Town of McCandless Planning Commission and lives with his family in McCandless. Brendan has visited every one of Allegheny County’s 130 municipalities.
