Appeals Judge Upholds BPU’s Decision to Block Solar Farm in Apple Orchard

Tom Johnson | November 13, 2015 | Energy & Environment
Developers contended site qualified as brownfield -- and for solar credits -- because it had been contaminated by pesticides

solar farms on farmland solar arrays
The state acted correctly when it rejected a plan to build a large solar facility on a former apple orchard, a New Jersey appeals court ruled yesterday.

In a 10-page decision, the court affirmed the Board of Public Utilities’ decision two years ago to reject the applicant’s contention it should qualify for ratepayer subsidies for the project as a so-called brownfield.

The ruling essentially upholds a policy decision by the Christie administration to steer big solar projects away from building on farmland and open space, and instead target former industrial sites and closed garbage dumps lying fallow because of contaminated soil and other pollution problems.

The applicant, Millennium Land Development LLC, contended that the property qualified for a brownfield designation because the site had been contaminated by the application of pesticides, which left arsenic and lead in the soil.

But the court noted that the state Department of Environmental Protection found no discharge of contaminants had occurred at the site.

In fact, the property had been valued, assessed, and taxed as farmland, according to the court.

The policy of avoiding placing large solar projects on farmland and open space is recommended in a solar bill passed by the Legislature a few years, ago as well as the state Energy Master Plan adopted by the Christie administration.

The BPU’s decision not to consider the property a brownfield meant that the project could not receive credits the facility would earn for electricity the solar panels would generate. Those credits, dubbed solar renewable energy credits (SRECs), are paid by utility customers and make the project economically viable.

The policy to avoid farmland for solar projects, a change in direction from the past, angered many solar developers who had spent money in the expectation that they could build solar farms on agricultural land and has been contested in the courts.