Renewable energy in the U.S. (and around the globe) is booming. Over the past decade, renewable energy generation across the country—primarily driven by solar, wind, and geothermal—has more than tripled. The U.S. Energy Information Administration, an agency of the Department of Energy, projects renewables deployment to grow to 59 gigawatts and account for more than a quarter of U.S. electricity generation in 2025. Although it is yet to be seen how the Trump Administration’s policies and actions will ultimately impact renewable energy in the U.S., it is safe to say that development of wind, solar, geothermal, and other renewable energy projects will continue to grow.
However, even though renewable energy in the U.S. is surging, fewer than one-fifth of proposed renewable energy projects actually reach commercial operation, according to research from the Lawrence Berkeley National Laboratory and several other sources. Project cancellations and delays can result in millions of dollars in sunk costs and a plethora of other wasted resources. Two of the leading causes of project disruptions, delays, and cancellations are: (1) onerous local regulation and permitting requirements; and (2) community opposition. Other hurdles include interconnection issues, shortage of skilled labor, lack of funding, and environmental restrictions. But the first two enumerated are the most common and most difficult to predict and navigate. Below is a brief summary of these two crucial and ever-evolving topics, as well as several key considerations, strategies, and tips every developer should understand and employ when navigating these issues.
Local Control and Controversy
The majority of states, including Colorado, give principal jurisdiction over siting and permitting of renewable energy projects—mainly wind, solar, and battery storage—to local authorities. In Colorado, the primary use or development permit usually will be obtained from the County government, which comes in the form of a conditional use permit (“CUP”), special use permit (“SUP”), or what is known as a “1041 Permit.”[1] The requirements for approval and regulations applicable to renewable energy projects under local laws differ from county to county and state to state. And in some instances, usually wind facilities, a project may span several counties or even states. This local permitting process (aside from any other permitting and approval requirements) can take many months to years to complete.
Local governments generally view their authority and jurisdiction very broadly, sometimes demanding more than the law requires or allows. Over the last several years, this legal overstepping on the part of local governments—which may have little to no experience in the development and regulation of renewable energy projects—appears to be increasing in frequency and extent. Two primary examples are:
- Assessment of excessive permit or impact fees. Counties more frequently are assessing impact fees in the hundreds of thousands, millions, and even tens of millions of dollars. This is done by assessing a dollar amount per megawatt (“MW”) (e.g., $10,000/MW) or a percentage (e.g., 1-2%) of total construction costs for a project. These fees—which are not tied to the actual impacts of a project—often are legally indefensible on multiple grounds, including running afoul of U.S. Supreme Court case law on unconstitutional takings.[2]
- Unreasonable permit conditions and project requirements. Such permit conditions can take many forms, such as overly burdensome and unjustified mitigation measures, unlawful funding and reimbursement provisions, and requiring developers to construct or fund infrastructure or community improvements unrelated to the permitted project, among a variety of other things (e.g., requiring that all or most of hired labor have a permanent zip code within the county).
The burdensome, complex, time-consuming, and costly local permitting process is a primary impediment to renewable energy project success in Colorado and beyond, resulting in significant project delays and frequent project cancellations.
Community Opposition
The above-mentioned permitting process heightens public awareness of renewable energy projects and, more importantly, includes a legally prescribed public notice and participation component. This includes public notice, comment and hearing requirements, which provides the public an opportunity to submit written comments to the government and to speak out at public hearings. The public—as well as permittees and other stakeholders (e.g., environmental groups and tribes)—also can file administrative or judicial challenges to approved projects and permits after they are issued.[3]
At the local level, community involvement, influence and impact can be magnified, particularly in smaller communities (where renewable energy projects often are sited). And although public support for renewable energy historically has been favorable, recent surveys and reports indicate that community opposition and controversy is “widespread and growing” (which the author of this article can confirm from direct experience).[4] Community opposition can result in significant project delays, more stringent permit requirements, scaled down projects, and even project abandonments.
Considerations, Strategies, and Tips to Navigate These Impediments and Maximize Project Success
Local control and community input will always be present and will continue to present challenges to renewable energy developers and project proponents. But that doesn’t mean developers are simply at the mercy of County governments and vocal residents. On the contrary, early identification and consistent execution of a strategic and calculated approach to project development can avoid significant pitfalls and help ensure project success.
Some valuable considerations, strategies, and tips include:
- Fully Understand the Regulatory Universe. It is imperative that developers fully understand the regulatory landscape governing a project from inception to decommissioning—on the local, state, federal, and tribal levels. This includes a forecast of potential regulatory changes and policy shifts, such as permitting reforms at the state level (which is occurring in Colorado) and moratoriums, among other things. Understanding all permitting, regulatory, and other requirements from the outset allows developers to identify and address potential bottlenecks and hurdles (or even deal breakers) early on. It is best to put this in writing at project inception, such as through a comprehensive permitting and regulatory memorandum or matrix, which should be regularly updated.
- Build a Comprehensive Team. Project proponents should build a comprehensive team early on in the development process, consisting of in-house representatives, appropriate consultants, and outside legal counsel, among others. Although this may be more resource intensive, it ensures the right people are involved early on to identify and evaluate significant project issues and hurdles and avoids hasty onboarding when issues do come up, which can lead to missteps and mistakes.
- Coordination with Local Authorities. Early, frequent, and transparent communication and coordination with local regulators is key. The goals here are to establish rapport, define a comprehensive permitting strategy and timeline, and identify issues and challenges. Working collaboratively with the local government often results in a more streamlined and favorable process and outcome.
- Community Engagement. As with the local government, early, often, and significant community engagement is of vital importance. Identifying and addressing community input and concerns early on can minimize significant issues and opposition during the development and permitting process. When the community feels like they are heard and involved—rather than kept in the dark or misled—project opposition can be minimized or avoided altogether. In addition, community engagement can garner substantial support for a project, which can have significant positive impacts on the development and permitting process.
- Be Prepared to Seek and/or Defend Against Legal Recourse. Legal challenges to renewable energy projects are on the rise, by both project proponents and opponents.[5] Throughout the entire process, developers should provide and maintain a robust record of proof, compliance, objections, positions, etc. to, among other things, support any claims or defenses in potential legal challenges. Similarly, developers should continually evaluate any legal claims they may assert or need to defend against in relation to their projects with in-house and outside counsel.
Again, local regulatory challenges and community opposition often are inevitable. But employing the above strategies can help streamline the process, minimize challenges and disputes, and set developers up for successful project completion.
[1] A “1041 Permit” obtained under “1041 Regulations” refers to a specific permitting process, authorized by House Bill 1041 and codified at C.R.S. §§ 24-65.1-101 to -108, allowing local governments to regulate development activities that have statewide impacts or are considered to be of state interest. The 1041 statute allows local governments to regulate—in almost any way they see fit—projects like major water and sewage systems, highways, and “major facilities of a public utility,” the latter of which has been interpreted to include wind, solar, battery storage, and other renewable energy facilities. As an alternative to a CUP, SUP, or 1041 Permit, developers can enter into a development agreement with the local government, but this mechanism is less frequently used to authorize and regulate renewable energy projects.
[2] See, e.g., Sheetz v. County of El Dorado, 601 U.S. 267 (2024).
[3] See, e.g., C.R.C.P. 106(a)(4) (authorizing individuals and entities to challenge decisions that are judicial or quasi-judicial in nature made by a governmental body or official).
[4] See, e.g., Eisenson, et al., Opposition to Renewable Energy Facilities in the United States: June 2024 Edition, Sabin Center for Climate Change Law (June 2024).
[5] See, e.g., Davis Graham Osage Wind Update; Kiowa County Sued Separately by Invenergy & Northern Cheyenne Tribe Threatening Renewable Energy Projects (Apr. 26, 2024).