In re Frederick Cnty.

• Decision Date: 08 December 2022
• Docket Number: 37-2022
• Parties: IN THE MATTER OF THE PETITION OF FREDERICK COUNTY, MARYLAND
• Court: Court of Special Appeals of Maryland

1

IN THE MATTER OF THE PETITION OF FREDERICK COUNTY, MARYLAND

No. 37-2022

Court of Special Appeals of Maryland

December 8, 2022

Circuit Court for Baltimore City Case No. 24-C-21-3999

Wells C.J. Nazarian, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Eyler James R., J.

This is a second appeal challenging the grant of a Certificate of Public Convenience and Necessity ("CPCN") for a 20 megawatt solar energy generating system ("SEGS") proposed by LeGore Bridge Solar Center, LLC ("LeGore"), appellee, and opposed by Frederick County, Maryland (the "County"), appellant. In the first appeal, we remanded for the Maryland Public Service Commission (the "PSC" or the "Commission"), appellee, to reconsider its grant of a CPCN for that facility. See Frederick Cnty. v. LeGore Bridge Solar Ctr., LLC, No. 1249, Sept. Term 2019, 2020 WL 6892007 (filed Nov. 24, 2020) ("LeGore Bridge I"). We held "that the PSC erred in concluding that LeGore 'acquired a vested right in its special exception[.]'" Id. at *2. In turn, because the PSC expressly decided "not to give due consideration to the statutory factors under" former Md. Code (2010 Repl. Vol., 2019 Supp.) § 7-207(e)(3) of the Public Utilities Article ("PU"),^[1] "and not to exercise its preemptive authority" over the County's conflicting zoning ordinance purporting to regulate SEGS facilities, as recognized in Bd. of Cnty. Comm'rs of Washington Cnty. v. Perennial Solar, LLC, 464 Md. 610 (2019) ("Perennial Solar"), we could neither "affirm the PSC's order based on the reasons stated in that order[,]" nor "substitute alternate grounds for the PSC's decision." LeGore Bridge I, 2020 WL 6892007, at *2. Consequently, this Court "vacate[d] the judgment and remand[ed] for further proceedings[.]" Id.^[2] After the parties presented supplemental memoranda, the PSC again granted LeGore a CPCN to construct its proposed SEGS facility. In its order, the PSC expressly "agree[d] with the [Public Utility Law Judge ("PULJ")] that the facts of this case warrant the exercise of the doctrine of pre-emption" recognized in Perennial Solar. After briefing and a hearing, the Circuit Court for Baltimore City affirmed.

The County again challenges approval of the LeGore Bridge CPCN, raising issues that we restate as follows:

I. Did the PSC violate the County's due process rights by taking notice of the County's "Livable Frederick Master Plan" and the PSC's decision in another case that the County's Bill No. 17-07 constitutes a de facto ban on SEGS?

II. Did the PSC give "due consideration" to the County's comprehensive planning and zoning, as required by PU § 7-207(e)(3)?

III. Did the PSC err in exercising its authority to preempt the County's conflicting local zoning provision, Bill No. 17-07, by approving a CPCN for the LeGore Bridge SEGS?

Once again, "[b]ecause we must 'look through' the circuit court's decision, to determine whether the PSC erred, our focus is on the PSC's record and reasoning. See Md. [Off.] of People's Counsel v. Md. Pub. Serv. Comm'n, 246 Md.App. 388, 400 (2020) (citing Md. [Off.] of People's Counsel v. Md. Pub. Serv. Comm'n, 461 Md. 380, 391 (2018); Accokeek, Mattawoman, Piscataway Creeks Communities Council v. Md. Pub. Serv. Comm'n, 451 Md. 1, 11 (2016)." LeGore Bridge I, 2020 WL 6892007, at *1. Evaluating this new CPCN under the statutory framework that the Court of Appeals detailed in Perennial Solar, and we applied in LeGore Bridge I, we conclude that the PSC did not violate the County's right to due process, fail to give due consideration to the applicable statutory factors, or otherwise err in exercising its preemptive authority to approve the CPCN.

Standards Governing Review of CPCNs for Solar Electric Generating Stations

In LeGore Bridge I, we applied standards governing CPCNs for SEGS, including LeGore's proposed project. In particular, we incorporated the detailed review in Perennial Solar, explaining the statutory framework in the Public Utilities Article for approving utilities generally and for regulating solar energy specifically. See Perennial Solar, 464 Md. at 621-30, 631-33; LeGore Bridge I, 2020 WL 6892007, at *2-4. Rather than repeating that full description here, we focus on the provisions pertinent to our resolution of this appeal.

Since 2009, the General Assembly has set statutory requirements and benchmarks for reducing greenhouse gas emissions. See Perennial Solar, 464 Md. at 622. These "include[] a significant increase in electricity sales derived from solar energy" and a mandate that the PSC "'implement a renewable energy portfolio standard'" ("RPS"). Id. at 622-23 (quoting PU § 7-703(a)).

"The PSC's review process of a [solar] generating station is extensive." Id. at 624. Although the PSC must "coordinate with and include the local governing body of the county . . . in the CPCN public hearing process," id., the Court of Appeals has emphasized that

[u]nder the express language of the PU, the PSC is the final approving authority for the siting and construction of generating stations, which require a CPCN, after giving "due consideration" to the following statutory factors:

(e) Final action by Commission. - The Commission shall take final action on an application for a certificate of public convenience and necessity only after due consideration of:

(1) the recommendation of the governing body of each county or municipal corporation in which any portion of the construction of the generating station . . . is proposed to be located;

(2) the effect of the generating station . . . on: (i) the stability and reliability of the electric system; (ii) economics; (iii) esthetics; (iv) historic sites;

(v) aviation safety as determined by the Maryland Aviation Administration and the administrator of the Federal Aviation Administration;

(vi) when applicable, air quality and water pollution; and

(vii) the availability of means for the required timely disposal of wastes produced by any generating station; and

(3) for a generating station:

(i) the consistency of the application with the comprehensive plan and zoning of each county or municipal corporation where any portion of the generating station is proposed to be located; and (ii) the efforts to resolve any issues presented by the county or municipal corporation where any portion of the generating station is proposed to be located.

PU § 7-207 (emphasis added).

Perennial Solar, 464 Md. at 625-26 (additional emphasis added). See LeGore Bridge I, 2020 WL 6892007, at *4.

We review the PSC's decision to grant a CPCN for the LeGore SEGS based solely on the findings and reasons stated by the PSC. See Accokeek, 451 Md. at 11; Comptroller of the Treasury v. Two Farms, Inc., 234 Md.App. 674, 697 (2017); LeGore Bridge I, 2020 WL 6892007, at *11, *15-16. In doing so, we recognize that "[b]y statute, a PSC decision approving a CPCN is considered 'prima facie correct and shall be affirmed[,]"' LeGore Bridge I, 2020 WL 6892007, at *12 (quoting PU § 3-203), unless clearly shown to be either "unconstitutional," "made on unlawful procedures[,]" "affected by other error of law[,]" or otherwise "unsupported by substantial evidence on the record considered as a whole." PU § 3-203. The Court of Appeals,

[i]n giving meaning to this language in PU § 3-203 without rendering it surplusage, . . . believe[s] that it calls for a court to be particularly mindful of the deference owed to the Commission on those issues on which courts typically accord some degree of deference to administrative agencies - i.e. findings of fact, mixed questions of law and fact, and the construction of particular statutes administered, and regulations adopted, by the agency. On those questions on which a court does not typically defer to an agency -general questions of law, jurisdiction and constitutionality - PU § 3-203 requires no greater deference to the Commission than any other agency. Such legal questions "are completely subject to review by courts."

Md. Off. of People's Couns., 461 Md. at 393-94 (footnotes omitted). See LeGore Bridge I, 2020 WL 6892007, at *12.

Facts and Legal Proceedings

This dispute began with LeGore's filing of an application for a CPCN on October 7, 2016. Having detailed the first stages of the ensuing administrative and judicial proceedings in LeGore Bridge I, we incorporate that summary of the facts and legal proceedings leading to our decision in the first appeal. See LeGore Bridge I, 2020 WL 6892007, at *4-11.

We vacated the PSC's initial approval of a CPCN for the proposed LeGore Bridge SEGS because the PSC erred in predicating its decision on a vested rights theory, then "expressly refused to" give due consideration to the PU § 7-207(e)(3) factors or otherwise exercise its preemptive authority to approve the proposed SEGS notwithstanding the County's opposition to the CPCN based on local zoning ordinance, Bill No. 17-07. See id. at *15-16. Because the PSC did not articulate an affirmable reason for approving the CPCN, we remanded for the PSC to reconsider LeGore's CPCN application. See id. at *16. In this appeal, we review those post-remand proceedings.

Post-Remand Proceedings Before the PSC

After remand, the circuit court ordered the case returned to the PSC. The PSC then issued a scheduling order stating that previously submitted memoranda would remain before the Commission and that the parties could submit supplemental memoranda "regarding any issue," including the impact of the Court of Appeals' decision in Perennial Solar. The County, LeGore, and the State's Department of Natural Resources, Power Plant Research Program ("PPRP") filed supplemental memoranda.

LeGore argued that in accordance with Perennial Solar, the PSC should exercise its authority to preempt the County's conflicting...