Alternative Energy — Pennsylvania’s Plan Meets NIMBY

In January 2014, Governor Tom Corbett issued the Pennsylvania State Energy Plan. The purpose of the “Plan” is to meet “the Commonwealth’s overarching goals of fiscal responsibility, helping to provide jobs for every Pennsylvanian and continuing to develop the work force to fill those jobs.”

The Plan identifies seven alternative and 11 renewable energy resources as important components of the overall strategy. The Plan also specifically identifies solar energy and wind power as two sources of renewable energy that Pennsylvania is interested in growing. With respect to solar, the state goal is to have 860 MW of solar photovoltaic electric generation by the year 2021. Presently, the largest solar array in Pennsylvania is an 11.5 MW solar farm located on 60 acres in Carbon County. With respect to wind power, there are currently more than 660 wind turbines producing 1,300 MW of power in Pennsylvania.

One of the key opportunities identified in the Plan is “Community Readiness.” Community Readiness is described as making “certain Pennsylvania’s communities are willing and ready for new energy related businesses through a structure of sound land use planning that reflects individual community needs and predictable, efficient local review processes.” Translation: The Commonwealth will work with communities that impose reasonable regulations that limit the impact of the NIMBY (Not In My BackYard) syndrome.

What is the NIMBY Syndrome?

Plainly stated, NIMBY syndrome is when a community and/or its politicians take action to keep some sort of development from occurring in their community simply because they have decided that they do not want that type of business in their community. The City of Erie most recently experienced a case of NIMBY in which a group successfully chased a tires-to-energy plant out of its City.  The result: The plant moved locations 35 miles south to Crawford County where it has successfully completed the permitting process. The ironic aspect of the impact of this NIMBY episode is that the allowable emissions from that project would have been significantly lower than what the allowable emissions had been from the paper mill that had once occupied the still vacant site.

Recently, the significant increase of Marcellus Shale development likewise led to NIMBY responses in a lot of communities as they sought to enact ordinances to prevent such development. This was particularly prevalent in the Pittsburgh area. Reacting to these efforts, the Commonwealth passed a law known as Act 13, which sought in part to eliminate the impact of NIMBY on such development by imposing restrictions on the ability of local authorities to regulate such development. However, in December of 2013, the Pennsylvania Supreme Court ruled that this aspect of Act 13 was unconstitutional. The Court relied on the Pennsylvania constitution and its strong protection of the environment to hold that the restrictions on community regulation imposed by Act 13 were unconstitutional. The result of the decision is that municipalities will be even more empowered to take actions that are based solely on the NIMBY concept.

The two most likely targets of NIMBY in the renewable/alternative energy market are solar power and wind power. According to the U.S. Department of Energy, as of 2011, five municipalities in Pennsylvania (including two in Erie County) already had passed ordinances regulating wind power. Consequently, as solar power becomes more affordable on a large-scale basis, we can expect a similar reaction. The Pennsylvania Supreme Court’s recent decision has made such regulation easier.

While the ability to impose restrictions on renewable/alternative energy facilities may discourage developers and conflict with the goals of the Plan, NIMBY should not be allowed to control the decision-making process. Communities should proactively fashion regulations that encourage such development. Furthermore, business organizations in the community actively should support efforts to eliminate NIMBY as a factor in opposing development. The Pennsylvania State Energy Plan would appear to be ready and willing to reward such communities. Otherwise, opportunities to advance renewable/alternative energy will be lost.

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