America's Energy Madness - We're Banning Solar Panels, But Many Towns Can't Regulate Fracking

When it comes to going green, many environmentally conscious citizens are finding themselves in murky waters, from Texas residents being blocked by homeowner associations from installing solar panels to Colorado residents trying to protect their cities from fracking battles they thought they'd won.

It’s not easy being green, especially when profits are involved. 

Just ask Eric Schirmer of Plano, Texas, who wanted to cut electricity costs and help the environment by installing solar panels on his home’s south-facing roof in his Trails of Glenwood subdivision. With the drop in prices of solar panels in recent years, Schirmer was ready to make the investment and sent in his application.

But despite a 2011 Texas law banning homeowners associations from restricting the use of solar power, Schirmer’s request was denied by his HOA. How? A loophole in the law allows developers to prohibit solar panels while a subdivision is still being built.

Are Solar Panels That Ugly?

Homeowner associations, legendary for restrictions on everything from the color you can paint your house to where you can park your car, are basically saying solar panels (shiny squares typically mounted on roofs as well as on scaffolding in yards) are ugly and therefore bad for business.

Scott Norman, executive director of the Texas Association of Builders, defended the developers: “Their goal is to sell lots in a subdivision,” he told the Dallas News, adding that anything that impedes that goal isn’t good for business or the neighborhood.

The ban expires when the neighborhood is complete and residents take control of the homeowners' board. But Schirmer could be waiting for years to get his solar panels.

In a time of growing concern about pollution and the depletion of natural resources, solar advocates say the loophole creates unnecessary obstacles for homeowners who want to go green. Moreover, they say, solar panels are no more unsightly than air-conditioning units. Besides saving energy, according a 2011 study by the National Bureau of Economic Research, solar panels actually boost a home’s value by as much as 3 to 4 percent.

According to Think Progress, the issue of developers and homeowner associations banning homeowners from installing solar panels is widespread across the nation, but is especially pertinent in Texas, California and Florida, since homeowners in those states are overwhelmingly governed by property owners’ associations.

Green Homeowners Fight Back

Evan J. Rosenthal, a Florida attorney with expertise in residential solar installations, told Think Progress that 40 states have passed some sort of solar access laws to protect homeowners’ rights to install solar panels, with 21 of those addressing “restrictive covenants” imposed by homeowner associations. While it’s a start, Rosenthal says the language of most of those laws is flawed by overly vague language that leaves too much wiggle room for interpretation, ending in lawsuits and lost investments with the homeowner usually on the losing end. “These laws must be very carefully crafted in order to fully protect homeowners,” he said.

Rosenthal said associations could be more proactive and adopt pro- and not anti-solar covenants, and new communities under development could even equip homes with solar panels bought by developers at wholesale prices and orient homes to have good southern exposure, for instance.

Rosenthal points to how societal perceptions change over time. “Consider, for example, the restrictive covenants enacted by communities in the mid-20th century designed to prevent African Americans and other minority groups from owning property. Perhaps someday future generations will view the efforts of community associations to restrict renewable energy technology with similar disdain.”

Fighting Fracking, Again

Meanwhile, many state lawmakers and judges are eager to offer political support to the oil and gas industry by killing municipal laws put in place by residents to try to stop fracking near their homes. This problem, where residents lose control over what can happen to their property in regards to drilling and extraction, is crystal-clear in Colorado, where fracking is particularly widespread.  

According to environmental news website EcoWatch, a Colorado district judge recently overturned a five-year fracking ban in Fort Collins, passed by voters, that halted new wells from being fracked within city limits, giving the city time to study the health impacts of fracking.

District Judge Gregory M. Lammons, wrote that the ban “effectively eliminates the possibility of oil and gas development within the City…[and that] would substantially impede the state’s interest in oil and gas production.”

To which Shane Davis, aka the Fractivist, told EcoWatch: “Yet another display of puppetry enforced by the regulatory scheme.”

Similarly, EcoWatch reported, residents of Lafayette, a picturesque town outside Boulder, filed a motion a few weeks back for a preliminary injunction to prevent the state, Gov. John Hickenlooper and the Colorado Oil and Gas Association (COGA) from taking away the town’s right to ban fracking.

It’s been a tug of war starting last November, when Lafayette citizens voted to pass a Community Bill of Rights under its Home Rule Charter that banned fracking and established the right of citizens to a healthy environment. By December COGA sued the city to overturn its Bill of Rights, claiming that while citizens don’t have a right to clean air and water or self-governance, COGA has a constitutional right to frack under the state’s Oil and Gas Act, according to EcoWatch.

Citizens responded by filing a first-of-its-kind class-action suit in June, arguing that parts of the Oil and Gas Act violate the right to local self-governance. COGA’s lawsuit can't move forward until there is a ruling on the preliminary injunction.

Thomas Linzey, executive director of the Community Environmental Legal Defense Fund, which is representing the citizens, told EcoWatch, “This class action lawsuit is merely the first of many by people across the United States whose constitutional rights to self-govern are routinely violated by state governments working in concert with the corporations that they ostensibly regulate.”

The situation in Colorado is a reflection of the state’s current political climate. Recently, two different initiatives for regulating fracking were set for Colorado’s statewide ballot. Activists across the state were engaged in a final push to collect more signatures in support of the initiatives. But political support among the state’s Democrats was sharply divided. Fearing backlash from Republican voters in the upcoming midterm elections, Gov. Hickenlooper, a supporter of natural gas development, brokered a deal with Rep. Jared Polis, who had backed the initiatives, resulting in them being dropped.

Activists are furious with Colorado’s Democrats for abandoning the environment and the rights of communities to regulate what happens within their boundaries. “All this turns into party politics. And that too is offensive to the grassroots,” says Kaye Fissinger, who managed the campaign to ban fracking in Longmont. “This is a people issue, not a party issue.”

But anti-fracking activists in Colorado are not down for the count. “This war is far from over,” says Fissinger. “[Polis’ decision] has infused an enormous amount of adrenaline into a lot of people.”

Fissinger says she has dropped her affiliation with the Democratic Party and re-registered as an independent. “If they think that the outcome is to shut people up, they have another thing coming,” she says.


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