Equal Protection for Energy Act
Draft Disclaimer
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Summary
This act prohibits energy bans that apply unfair prohibitions, restrictions, or penalties to energy resources, technologies, or the infrastructure needed for access. If an energy source is safe, it should be legal to produce and use. The bill allows property owners to develop and use energy resources and technologies, without regard to political preferences for certain types of power, while providing legal remedies to address true nuisances.Model Policy
Section 1: Legislative Findings and Intent.
The Legislature finds and declares that:
(a) Access to reliable, affordable, and diverse energy sources is essential to the health, safety, and economic well-being of the citizens of this State.
(b) The right of a property owner to develop energy resources, install energy generation technologies, and utilize legal appliances of their choice on their own property is a fundamental component of private property rights.
(c) Local or state agency mandates that ban, restrict, or distort market access to specific energy technologies infringe upon individual liberty and property rights, reduce grid reliability by frustrating competition, burden economic development, and increase costs for consumers.
(d) Government regulation of energy technologies on private property must be strictly limited to the nondiscriminatory enforcement of existing nuisance standards.
Section 2: Definitions. For the purposes of this Act:
(a) “Compelling governmental interest” means a governmental interest of the highest order that cannot be achieved through less restrictive means.
(b) “Energy system, infrastructure, or appliance” means any system, device, appliance, or related infrastructure designed to:
- Generate, harvest, store, or distribute electrical, thermal, or mechanical energy on-site for a property owner’s, tenant’s, or occupant’s use;
- Utilize, combust, or consume any fuel or energy source legally available in the State for cooking, heating, cooling, manufacturing, transportation charging, or other domestic, commercial, or industrial purposes; or
- Provide production, transmission, transport, or retail access to an energy source, including wholesalers, retailers, and end-use fuel infrastructure.
(c) “Energy source” means any fuel, fuel distillate, power source, or raw material used to generate electricity, heat, mechanical power, or thermal energy, including but not limited to nuclear, natural gas, propane, electricity, solar radiation, wind, wood, biomass, hydrogen, and liquid petroleum fuels.
(d) “Governmental entity” means any unit of state or local government, including but not limited to a state agency, permitting authority, county, city, town, consolidated city-county, political subdivision of the state, or a state regulated utility monopoly exercising authority granted by the state.
(e) “Nuisance” means persistent activity that injures the physical condition of adjacent land or interferes with its use, or which is injurious to health or safety, or which is objectively offensive to the senses.
Section 3: Prohibition on Energy Source Discrimination.
(a) A governmental entity may not adopt, enforce, or implement a law, ordinance, resolution, regulation, rule, policy, or any other measure, including a renewable portfolio standard, that directly or indirectly prohibits, restricts, or penalizes the sale, purchase, installation, or use of an energy system, infrastructure, or appliance based on the specific energy source or fuel it utilizes.
(b) A governmental entity may not adopt, enforce, or implement a law, ordinance, resolution, regulation, rule, policy, or any other measure, including a renewable portfolio standard, that limits access to or use of an energy source, or that results in the effective prohibition of infrastructure necessary to provide access to a specific energy source.
(c) Subsections (a) and (b) shall not apply if the measure:
- is necessary to abate a nuisance;
- is necessary to enforce the terms of a license, permit, or authorization, that is issued in compliance with this Act;
- is necessary to enforce requirements imposed by federal law; and
- is applied in a technology-neutral manner without regard to the type of energy system, infrastructure, appliance, or energy source.
(d) The underlying energy source, carbon intensity, or standard operation of an energy system, infrastructure, appliance, or engine shall not, by itself, be construed to constitute a nuisance under the laws of this State.
(e) Relevant building, electrical, and fire safety codes may be enforced, provided that such codes are reasonable and technology-neutral and regulate only the safety of the installation method.
(f) Nothing in this Section repeals or limits generally applicable, technology-neutral environmental, public health, safety, land-use, historic-preservation, parks, or conservation laws, including rules governing state parks and protected lands, so long as such laws do not have the purpose or effect of prohibiting the installation or operation of an energy system or appliance.
Section 4: Private Right of Action and Enforcement.
(a) Any individual, property owner, tenant, or business entity aggrieved by a violation of this Act by a governmental entity may bring a civil action in a court of competent jurisdiction for declaratory and injunctive relief.
(b) The burden shall be on the governmental entity to prove by clear and convincing evidence that an exception under section (3)(c) of this act applies.
(c) An aggrieved party that prevails in an action brought under this section shall be awarded reasonable attorney’s fees and costs. The court shall not award attorney’s fees and costs to a governmental entity that prevails under subsection (b) of this section.