Late last year, pursuant to her review authority under M.G.L. c. 40, § 32, then-Attorney General (now Governor) Maura Healey (the AG) issued a decision disapproving the Town of Carver’s moratoria on large-scale solar projects and battery storage systems. The grounds for the decision were straightforward and well-supported: citing the Supreme Judicial Court’s June, 2022 decision in Tracer Lane II Realty, LLC v. City of Waltham (see our blog post on that important opinion), and case law disfavoring moratoria generally, the AG determined that Carver’s moratoria violated M.G.L. c. 40A, § 3 (Section 3) by unlawfully restricting solar and battery storage systems “with no articulated evidence of an important municipal interest, grounded in protecting the public health, safety, or welfare […] sufficient to outweigh the public need for solar energy systems.” The AG found that instead of promoting the policy behind Section 3, the moratoria “undermined the state policy favoring solar energy” and that the town’s interest in implementing moratoria to “study” the impacts of solar facilities was an insufficient justification in light of the extent of the restriction.
For practitioners who represent solar developers or municipalities this decision comes as little surprise after Tracer Lane. Closer questions about the kinds of regulations of solar arrays that undermine rather than promote the policy behind Section 3 remain to be answered. But the AG’s decision did answer some lingering jurisdictional questions.
In footnote 8 of her decision, the AG indicated she considers the Section 3 protections for solar energy to encompass “battery storage.” Incorporating the definition of “energy storage system” in M.G.L. c. 164, § 1, and finding that energy storage systems are “critical to the promotion of solar and other clean energy uses” under existing legislation, the AG concluded that battery storage systems constitute “structures that facilitate the collection of solar energy” under M.G.L. c. 40A, § 3. This strongly suggests that municipal regulation of even standalone battery storage systems will be closely scrutinized under the Tracer Lane standard.
The AG also offered “comments for the Town’s consideration if it adopts future zoning amendments regulating Battery Storage.” Her first comment relates to the jurisdiction of the Energy Facilities Siting Board (EFSB) as it considers an application filed by Cranberry Point Energy Storage. (Disclosure: Pierce Atwood represents the project proponent in this matter. We also represent the developer of a project in Medway, Massachusetts, a town whose efforts to limit solar and battery storage systems were the subject of these two interesting pre-Tracer Lane decisions). While Cranberry Point is required to conform with amendments to the zoning bylaw unless it commences construction within one year, the AG warned the town not to apply such amendments “in a way that interferes with the jurisdiction of the EFSB” as it considers Cranberry Point’s comprehensive zoning exemption request (though she declined to elaborate on what might constitute a jurisdictional interference). The AG’s second comment addresses upcoming changes to the state Building Code. Because battery storage systems are regulated in the International Energy Conservation Code, and the state Board of Building Regulations and Standards is statutorily obligated to adopt that code, battery storage systems soon will be regulated by the state Building Code. The AG therefore noted that the Building Code, in regulating “construction methods and materials” for battery storage systems, will preempt any municipal regulation of those aspects of such systems.
It seems likely that municipalities strongly opposed to battery storage systems will continue to pass bylaws attempting to regulate them, but at least town counsel can point to the AG’s Carver decision in advising when such regulations may exceed the municipality’s lawful authority.