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Regulatory and practical keys to achieving a solar future

6 minute read

The sun sets beyond solar panels at a power plant in Amareleja, southern Portugal, April 23, 2008. REUTERS/Jose Manuel Ribeiro/File Photo

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October 11, 2021 - The Biden administration is setting ambitious renewable energy goals and is charting a path toward a clean power-generation future. To fully realize the potential of the large amounts of renewable generation that is called for, regulators and policymakers must ensure that solar and wind projects can be permitted, that installed capacity reaches markets, and that installations can be repowered or decommissioned in an environmentally sound way.

Earlier this month, the National Renewable Energy Laboratory (NREL) issued its Solar Futures Study ("Study") to illuminate a path toward a zero-carbon electric grid. Topline takeaways from the Study show that achieving a zero-carbon grid by 2050 will require U.S. utilities and solar developers to quadruple yearly solar capacity installation to achieve 1,000 GW of installed capacity by 2035 and as much as 3,000 GW by 2050.

The anticipated benefits of such a build-out are self-evident: jobs and decarbonization. As are the challenges: significant land use, siting and permitting, environmental impacts, and transmission buildout.

Deploying solar power to the extent suggested in the Study requires a 'whole-economy' approach that would test the ingenuity of researchers, builders, CEOs, raw material providers, manufacturers, project developers, regulators and policymakers. Indeed, transitioning the power grid from a system built for baseload generation to one that seamlessly integrates intermittent renewables and battery storage technology will be an engineering feat as inspiring as its inception.

Among the key challenges to the Study's suggested solar integration is the fact that federal permitting regimes have created extraordinarily long project development timelines since the 1970s. Permitting reforms that might benefit renewable energy projects are partially in the hands of federal executives, but permitting solar projects is likely to get more complicated before it gets easier.

To illustrate, the Office of Information and Regulatory Affairs' Spring 2021 Unified Agenda shows that federal agencies are revising regulations such as the National Environmental Policy Act, Migratory Bird Treaty Act, Endangered Species Act, and Clean Water Act, among others. Targeted regulatory actions further focus on compensatory mitigation, conservation banking, Sage Grouse planning and the Lesser Prairie Chicken's listing. All indications suggest that these actions will increase regulatory burdens on solar and wind developers, which will also make investing in large solar facilities more complicated.

While regulatory compliance under changing rules is time-consuming and expensive, each of these regulatory measures plays an essential role in protecting human health, species survival and the environment. Accordingly, federal agencies are faced with the challenge of producing reforms that will protect the environment and not further encumber the five- to seven-year timeline required to plan, permit and construct large solar projects.

According to the Federal Permitting Improvement Steering Council, permitting large solar projects takes nearly two and one-half years, and permitting electric transmission lines takes nearly three and one-half years. Unless federal agencies can increase their coordination to expeditiously analyze the impacts of proposed projects under the alphabet soup of federal standards, the U.S. will not begin to realize the benefits the Study forecasts until 2028 at the earliest. If the agencies prove unable to meet this challenge, it may fall on Congress to modernize federal permitting to protect the environment and efficiently permit new projects.

Another challenge to achieving the Study's described future is getting installed renewable power to local markets. Plainly, America does not have enough transmission capacity to move 3,000 GW of solar power to market. This hurdle involves permitting and siting challenges as well as state and local reactions to proposed transmission infrastructure — which can often cause significant delays for the large-scale projects necessary for renewables integration.

Earlier this year, Grid Strategies LLC identified 22 shovel-ready transmission lines representing $33.278 billion in investments whose completion are facing serious challenges. TransWest Express, NE Clean Energy Connect, Cardinal-Hickory Creek and Grain Belt Express are examples of projects that would carry renewable power to market but have faced overwhelming opposition. An interesting thread that unifies groups opposed to transmission lines is that they generally favor renewable energy but are opposed to projects in their local communities.

In contrast to potential solutions to the federal permitting issues, addressing local opposition to electric transmission infrastructure is much more complicated. Solar, wind and transmission project proponents have often struggled to achieve project "buy-in" from local stakeholders, similar to what their peers in the extractive industries have long faced. Increasingly, transmission project development has become a high-stakes battle fought before judges and the public. While effective stakeholder engagement and outreach is certainly part of the solution to these issues, the fact that 22 shovel-ready renewable transmission lines proposed by sophisticated entities continue to face delays speaks to a broader problem.

Lastly, the development of numerous new renewable generation projects will lead to the repowering or decommissioning of older generation facilities that have reached the end of their useful life or where the land they occupy can be used more beneficially by newer generation projects. Policies and planning around repowering or decommissioning renewable energy facilities have received little attention in recent years. The context surrounding older renewable energy facilities is key to understanding why repowering and decommissioning will become a pressing issue in the coming years.

The first large-scale solar facility built in America to eclipse 1 MW was built near Hesperia, Calif., in 1982. Over the past 40-years, the U.S. has aggressively researched, invested in, and installed renewable capacity to the point where the U.S. now has 102.8 GW of installed solar capacity, representing over 550,000 acres of development. The NREL Study proposes 1,000 GW of installed capacity by 2035 and 3,000 GW by 2050, approximately 10 and 30 times what is currently installed, respectively.

A companion statistic worth considering is that the average solar facility has an effective life of 20 to 30 years. At some point, the 550,000 acres of currently installed capacity, and the 1,645,393 acres of contemplated capacity in 2050, must be decommissioned and/or repowered, begging the question of what to do with all of the expired solar panels. Just like coal, gas, or nuclear plants, renewable facilities must be decommissioned and/or repowered with new, more efficient equipment.

Solar and wind energy facilities provide numerous benefits to the environment, but they also contain materials that are toxic, do not decompose, or are not recyclable. On the other hand, solar panels and wind turbines contain critical and rare earth minerals that, if recovered, represent potential revenue streams for developers and utilities and make renewable power renewable in more ways than one, making the Study's outcomes even more technically feasible.

Numerous developers, utilities, research groups and universities are seeking to solve these decommissioning issues through material science, land use, recycling solutions, and more. State legislative bodies are also beginning to impose decommissioning and bonding requirements on existing renewable facilities to ensure that future solar facilities are decommissioned or repowered. While certain entities are making headway, solutions are still maturing, and the potential to have outcomes dictated to developers and utilities by regulators is very real, which also complicates the Study's projected solar future.

Solving the complexities associated with permitting, bringing renewable energy to market, and planning for repowering and decommissioning solar facilities each need to occur to fully realize all of the benefits associated with the solar future forecasted by the Study.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

James Voyles is of counsel in the Regulatory and Government practice at Lewis Roca in Phoenix, where he focuses on diverse matters in the environment, energy, and natural resources space. Previously, he served as senior counsel at the U.S. Department of the Interior where he focused on federal land management, responsible natural resources development, recreation and grazing access, conservation, environmental quality and infrastructure deployment. He can be reached at jvoyles@lewisroca.com.

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