Advancing Regional Energy Planning
HOW SITING WORKS
Siting
All energy infrastructure projects undergo siting and permitting processes, which are impacted by government regulations; federal, state, local and tribal, according to the Niskanen Center. While the process for the siting of an energy facility depends on the project, land rights are often obtained “via a private property transaction, the exercise of eminent domain authority, or a government process determined by agency actions and regulations (for example, leasing federal land).” Energy siting, leasing, and permitting determine where projects such as solar farms, wind turbines, or transmission lines can be constructed. These processes not only authorize construction but also shape how community benefits are captured through enforceable community benefits agreements, while requiring developers to avoid, offset, or compensate for impacts on nearby communities and the environment.
Siting is a primary step in developing energy facilities. Unlike leasing, which involves renting or purchasing land, siting entails evaluating whether a location has the necessary energy resources, whether the land can be acquired, and whether local, state, or federal regulations permit development. In the American West, developers frequently lease land from the Bureau of Land Management (BLM), while nationwide, others turn to private land, where farmers can earn as much as $2,000 per acre annually by leasing for solar. In some cases, subsurface rights must also be secured separately from surface rights. Once a site is chosen and land access is arranged, developers must navigate permitting processes across multiple agencies, which can take months or even years before construction can begin.
Legal and Regulatory Landscape
The siting of energy facilities occurs within a complex legal and regulatory framework that spans both state and federal jurisdictions, creating opportunities and challenges for COGs, MPOs, and RPOs.
At the federal level, agencies such as the Federal Energy Regulatory Commission (FERC) and the US Department of Energy set requirements for interstate transmission, permitting, nuclear and environmental review, while states can often maintain authority over siting for solar, wind, and storage projects.
As of 2025, case law and regulatory precedents—from state supreme court rulings on local zoning authority to federal cases clarifying preemption—illustrate how disputes over jurisdiction and community rights shape outcomes. For example, Oregon’s Energy Facility Siting Council consolidates local and state requirements into a single review process. In other states, siting remains a patchwork of local ordinances.
Resources such as the National Conference of State Legislatures (NCSL) State Energy Legislation Database provide up-to-date legislative tracking, helping regions navigate the evolving legal landscape.
The information below represents a selection of examples, ranging from federal and state roles to illustrative case law, for regional planning organizations as they consider their role in the siting of energy facilities.
State, Federal, and Local Roles (Siting 101)
Mechanisms:
- Veto Power Over Interstate Assets (Preemption): The Federal Energy Regulatory Commission (FERC) has the authority under the Natural Gas Act to issue a “Certificate of Public Convenience and Necessity” which preempts all state and local objection for gas pipelines.
- Safety Standards (Nuclear): Authority over the safety of and security of nuclear sites is exclusively reserved for the Nuclear Regulatory Commission (NRC).
- Environmental Protection (NEPA): If a project needs a federal permit or uses federal land, the lead agency must conduct a National Environmental Policy Act (NEPA) review. This can stop a project if negative environmental impacts are not addressed.
Mechanisms:
- State Siting Boards: In many states (like NY and OH), a centralized board has the authority to consolidate all local and state permits into one single “Super Permit.”
- Economic Approval (CPCN): Most states require a Certificate of Public Convenience and Necessity (CPCN) which allows businesses to provide an essential public service like electricity.
- Environmental Protections (SEPA): Some states have a State Environmental Policy Act (SEPA) which functions similarly to NEPA but at the state level.
- Preemption: Some states, including Illinois and Michigan, have moved siting authority from counties and towns to the state commission for large-scale projects over a certain size.
Mechanisms:
- Zoning and Setbacks: Counties, cities, and townships use zoning to coordinate land-uses. For example, they may determine how far a wind turbine must be from a house (setbacks), how loud it can be (decibels), and how tall it can be.
- Decommissioning Bonds: Local governments often have the authority to require developers to put money in escrow to ensure the project is torn down and the land restored at the end of its life.
- Road Use Agreements: Because heavy equipment can damage local roads, counties have the authority to require “Road Use Agreements” where the developer pays for repairs.
- PACE bonds (Property Assessed Clean Energy): Local governments can authorize PACE financing, which places the cost of clean‑energy improvements on a property tax assessment. Funds can support residential (R‑PACE) or commercial (C‑PACE) projects.
Siting energy facilities can raise fundamental questions of control, risk, opportunity, communication, and impact. Here are four key questions for regions to ask during energy facility siting:
1. Where is the project and who controls the siting decisions?
Is the project advancing through private land sales, leases from federal agencies like BLM, or the use of eminent domain, and how does that shape local authority?
2. What are the possible and likely risks and benefits?
The project may bring many types of risks and benefits to the host community including health, safety, energy resilience, economics, environmental, community sense of place, governmental trust and credibility, and culture. Reviews ask questions such as: Could delays, costly permitting battles, or community pushback derail the project? What safeguards exist to mitigate the financial and social risks like project delays due to community pushback? Does the site create long-term regional benefits such as new jobs, tax revenues, or land lease income for local landowners?
3. How will communication happen? Who are the stakeholders?
Are there transparent channels such as public comment periods, hearings, or information sessions that allow stakeholders to engage early and often? Who in your community, beyond government officials and staff, is a stakeholder? Are there neighboring communities or tribes that may be impacted?
4. What are the impacts?
How will environmental, social, and economic effects be identified, avoided, offset, or mitigated to ensure benefits outweigh harms?
Case Law
The First District Court of Appeal in California invalidated a statute that restricted judicial review of the California Energy Commission’s thermal power plant siting decisions exclusively to the state Supreme Court. The court held that the law unlawfully removed the original jurisdiction of superior courts and appellate courts to hear challenges to CEC approval
A Massachusetts Federal District Court struck down a federal halt on wind energy permitting that had been in place since January 2025. The court ruled the “Wind Order” was arbitrary and capricious under the Administrative Procedure Act (APA), establishing that agencies cannot indefinitely decline to adjudicate permit applications without a reasoned basis.
The Massachusetts Supreme Judicial Court upheld the Energy Facilities Siting Board’s approval for Eversource’s East Boston substation, finding the board properly considered environmental justice and undue delay. The decision affirms the project’s necessity and compliance with public interest and environmental standards.
The United States Court of Appeals for the Third Circuit held that while states retain “siting” authority (aesthetics, environment), they cannot use “lack of need” as a pretext to block projects if a federal or regional authority (like an RTO) has already determined the project is necessary for the grid.
Web-based Resources
Oregon Siting Process Flow Chart
The Oregon Department of Energy, which oversees the Energy Facility Siting Council facility siting process, has a helpful flowchart you can view as a sample process. *Note this will vary state by state*
Summary: The process consolidates state and local regulations into a single review for energy facility siting. It involves multiple stages with opportunities for public participation:
- Notice of Intent (NOI): Applicant signals intent to apply; agencies and public identify issues.
- Project Order: Defines analysis areas and applicable rules for the application.
- Application for Site Certificate: Applicant details the facility, impacts, and compliance with standards.
- Public Information Meeting & Comment Period: Public and agencies provide input.
- Draft Proposed Order: Preliminary evaluation recommending approval (with conditions) or denial.
- Public Hearing: Stakeholders testify or submit comments; issues must be raised here for further participation.
- Proposed Order & Contested Case: EFSC reviews, and a hearing officer conducts contested proceedings for eligible participants.
- Final Order & Site Certificate: EFSC issues final decision; appeals go directly to the Oregon Supreme Court.
More Information on State and Local Permitting:
- State and Local Permitting Restrictions on Wind Energy Development | R Street Institute
- Siting, Permitting, and Procurement Analysis | NLR
- Energy | NCSL
Maps of State Siting and Permitting Authority: