Author: Paul Goeringer

As we continue to see rural landowners offered renewable energy leases, it’s important to remember the phases these agreements often include and what may happen during each phase.  If you are presented with a lease agreement for a renewable energy project and are considering it, talk with an attorney with experience in the area before signing.  In many cases, you can go to your state bar association’s website and look for members in your area and talk with them to better understand their experience with these agreements.  At the same time, you can reach out to groups like the American Agricultural Law Association to see if any of their members may have experience in your area.  Working with an attorney early on can help ensure you get a fair deal that protects your interests.

Wind and solar energy agreements usually have three stages: an easement period, an option period, and a lease period. In the first stage, the easement period, the landowner allows the developer to study the land to see if it’s good for a wind or solar project. The developer may survey the land, place sensors to measure wind and sunlight and study the impact on the environment and wildlife. They will also check if the land is suitable for construction. This stage can last anywhere from one to three years. During this time, the landowner can still use the land if they don’t interfere with the developer’s equipment on the property during the surveying.  At the same time, the landowner will continue to receive rental payments.

During the second phase, called the option to lease, the developer works on getting permits and funding for the project. For example, in Maryland, they need approval from the Public Service Commission and other permits to start construction. Other states may need different permits from local governments and approval to connect to the power grid. This phase usually lasts two to five years. The developer is not required to proceed with the project during this time. The landowner can still use the land as usual and will also receive rental payments for the land during this phase.

The third and final phase is the lease. In this phase, solar panels or wind turbines are installed, and the landowner starts receiving lease payments. This phase includes building, operating, possible renewal, and eventually removing the equipment. All told this phase of the agreement may run for 30 or more years with renewals included.  The landowner will have limits on how they can use the land to avoid interfering with the project.

This agreement could end early in the first phase if the surveys show the property is unsuitable for renewable energy development.  It could also end in the second phase if the permitting is not approved.  As mentioned earlier, it’s important to always talk with an attorney and have the agreement reviewed before signing it.

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Goeringer, Paul. “Understanding Renewable Energy Agreements: Easement, Option, and Lease Phases Explained.” Southern Ag Today 5(13.5). March 28, 2025. Permalink

            On November 2024, the IRS announced the revised federal estate tax and gift tax limits for 2025.  The federal estate tax limit will rise from $13.61 million in 2024 to $13.99 million in 2025.  The federal gift tax limit will jump from $18,000 in 2024 to $19,000 in 2025. North Carolina and Texas have repealed their state estate taxes, and the remaining states in the South have tied their state estate taxes to the federal estate tax limits.  

Federal Estate Taxes

            For 2025, the federal estate tax limit increases to $13.99 million for an individual and $27.98 million for a couple.  A deceased person owes federal estate taxes on a taxable estate if the value is over the exemption amount.  The taxable estate is the gross estate minus allowable expenses and deductions.  For example, a couple with a taxable estate of $28 million passes away in 2025.  The couple’s heirs may exempt up to $27.98 million from federal estate taxes and only owe federal estate taxes on $20,000.  If an estate is getting close to federal estate tax limits, then please check with your accountant to better understand what potential taxes you would owe. 

            One last note on federal estate taxes: a surviving spouse has an unlimited marital deduction. The surviving spouse can include the predeceasing spouse’s unused federal estate tax limit in their federal estate tax limit. This concept is known as portability, and it provides strategies for estates that may be reaching the estate tax limits.

            It is important to note that the current exemptions sunset on Jan. 1, 2026.  Congress would need to extend the current exemptions, or we would have to revert to the prior exemptions.  The prior exemption is estimated to be around $7 million in 2026.

Federal Gift Tax Limit

            The federal gift tax limit goes up to $19,000 in 2025.  Federal tax law allows each taxpayer to gift up to $19,000 per year to one individual without incurring federal gift taxes. This exemption is tied to inflation but can only increase to the nearest $1,000 amount.  For a couple, this would be $38,000 in gifting to an individual.  Gifting strategies can be adopted by those individuals nearing the estate tax limits to reduce the value of their estates.  Individuals should talk to their accountant and attorney to consider developing strategies that will minimize the impacts of estate taxes.

How Does This Impact You?

            Benjamin Franklin once wrote, “In this world, nothing can be said to be certain, except death and taxes.” With that in mind, farm families concerned about hitting the top federal or state estate tax exemption need to begin working on farm succession and estate plans to limit potential estate taxes down the road. Research from USDA’s Economic Research Service highlights that in 2023, 99 percent of U.S. farms would owe no estate taxes with those farms being impacted by federal estate taxes being less than 1 percent.  

            Working with a tax advisor early on can help limit your taxes and devise a tax plan to keep the farm in operation for future generations. Failure to properly plan can force surviving family members to sell family assets to pay taxes on the inheritance. Along with a tax advisor, consider working with additional team members, such as an attorney and financial planner, to begin developing the family’s farm succession plan.

            For those who need to develop estate tax plans, you should discuss with your farm succession team members if the increases in the estate tax limits impact your plan. Although this change may not affect your succession plan, it allows you to discuss other changes in the farming operation over the past year.

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Goeringer, Paul. “Federal Estate Tax and Gift Tax Limits Announced For 2025.” Southern Ag Today 4(49.5). December 6, 2024. Permalink

Each state has a right-to-farm law that protects agricultural operations from lawsuits that the farm is a nuisance.  In many cases, these laws vary from state to state.  Although the laws vary, decisions from other states often help us understand how these laws might be interpreted in other states.  Two recent decisions out of Kansas and Maryland highlight what farms might want to consider when determining if their operation meets the guidelines in their states.

In Kansas, the state’s supreme court recently upheld the decision of the Court of Appeals of Kansas not to allow a hog operation to utilize the defense.  The hog farm had expanded, and the new facilities required additional pipelines to be run in other fields to apply effluent from the operation.  The operation never got permission from the neighboring landowners to run the pipelines along the county road.  The Supreme Court of Kansas agreed that the easement for the road to the county only created a right to use the road and did not give permission to run pipelines along the right of way without the permission of the neighboring landowners.  Because the Kansas right-to-farm law required the operation to comply with all laws, the operation could not use the law since they had committed trespass to put in the pipelines.  That decision is in Ross v. Nelson (Kan., 2024).

In Maryland, a new farmland owner switched from using chemical fertilizers to a form of biosolids as fertilizer. Neighbors complained, and the Appellate Court of Maryland recently upheld the producer’s right to switch practices on the farmland and maintain the right-to-farm law protections.  Maryland state law requires an operation to exist for one year to gain protection, and the court agreed that switching nutrient management practices did not reset that clock.  The court pointed to legislative history, stating that the legislature should have fully understood that the one-year provision would allow operators to switch practices without resetting the one-year clock.  That decision is In the matter of Cheryl Lewis, et al. and is currently being appealed to the state’s supreme court.

I realize many of you are not in those states, but those decisions will often remind producers that they need to understand what their state’s right-to-farm law requires to ensure the farm can utilize the defense if needed. If you do not know your state’s right-to-farm law, the National Ag Law Center has compiled a list of all 50 states here.

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Goeringer, Paul. “What Other State Decisions Can Tell Us About Right-to-Farm Laws.” Southern Ag Today 4(43.5). October 25, 2024. Permalink

As hemp growers finish harvesting the 2023 crop, they should plan for 2024. In 2024, the USDA will fully enforce the Domestic Hemp Production Program rules, requiring all hemp to be tested by DEA-registered facilities beginning January 1, 2024. Initially set for 2023, this rule was postponed due to a lack of testing capacity. The USDA’s Agricultural Marketing Service (AMS) has compiled a directory of DEA-registered testing facilities for controlled substances, including hemp testing. This directory aids growers in locating nearby DEA-registered facilities for compliance.  Labs fluctuate, but in general, the number of testing facilities has increased since the 2018 Farm Bill/inception of hemp production in America.

Federal regulations outline hemp testing requirements within state and tribal production plans. These rules necessitate samples taken by sampling agents within 30 days of expected harvest to test total delta-9 THC concentration, which should be below 0.3% on a dry weight basis. A 95% confidence level ensures that no more than 1% of plants exceed the permissible THC levels (greater than 0.3% delta-9 THC on a dry weight basis).

Thinking about this for the future, how does the current testing infrastructure track with reported planted acres?  Looking at the 2022 Farm Service Agency’s (FSA) reported acreage, there is no statistical relationship between the number of hemp acres and the proximity of a county to a DEA-registered testing facility on the AMS directory. However, with the new requirement for all hemp to be tested in registered facilities, we will likely see a shift in future county hemp production to correlate more closely with testing facility proximity.

Without a correlation between hemp acres and testing facility location at the county level, we turned to evaluate the relationship between reportage acreage and access to DEA-registered testing facilities by state.  The map highlights reported hemp acres planted in 2022 by state and the number of hemp testing sites by state. Those states with considerable hemp acreage and less testing infrastructure are shown as light green in color (Montana, South Dakota, Missouri, Oklahoma, Kansas), and states with adequate testing infrastructure for the state’s sizeable hemp acreage as dark sea green (Texas, Colorado, Kentucky, and North Carolina). As the industry begins to mature, we expect planted hemp acres to be more correlated to the location of registered testing facilities.

The numerical values on each state on the map are the calculated ratio of 2022 reported hemp acres planted /divided by the number of testing facilities in the state. For example, in Texas there are 133 acres of hemp planted per testing facility. Note that the states without a ratio label represent states that do not have any testing facilities despite having hemp acres planted in 2022.

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This work is supported by the Agriculture and Food Research Initiative (AFRI) program, grant no. 2021-68006-33894/project accession no. 1025097, from the U.S. Department of Agriculture, National Institute of Food and Agriculture.  Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and should not be construed to represent any official USDA or U.S. Government determination or policy.

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Goeringer, Paul and Elizabeth Thilmany. “Do We Have Enough DEA-Registered Labs to Implement Hemp Program?” Southern Ag Today 3(45.5). November 10, 2023. Permalink

Disclaimer: This article is provided for purely educational purposes, and the reader should check to see if state policy has changed since its posting.  

            The question often asked by landowners considering leasing a portion of their property for solar development is, what happens at the end of the lease?  The answer to this question often depends on current state policy and the decommissioning clause negotiated in the lease.  While this is a rapidly developing topic, we provide a current synopsis of both in the paragraphs that follow. 

Based on a cursory review of state law – and as summarized in Table 1 – there is a considerable amount of variability across the South.  For example, 6 states require some form of decommissioning plan, with 4 of those also requiring assurance that funds will be available to decommission the solar project at the end of its life.  Another 3 states have legislative action pending and/or have developed a model ordinance for local government (e.g. Georgia).  Finally, 4 states have no statewide decommissioning regulations.  

With respect to decommissioning clauses negotiated into leases, lease terms often state that the facility will be removed and potentially include a bonding requirement.  Landowners should often consider negotiating a decommissioning clause that considers current state policy plus how to restore the land in the future once the solar facility is removed.

            When presented with a lease for a solar energy facility, landowners should have a clause that deals with decommissioning and cleanup of the site.  Depending on the state, these clauses can either enhance the existing decommissioning policy or dictate how the cleanup process will occur.  The typical lease should require the company to remove all its Solar Facility, including the panels, posts, and concrete pads, and typically remove wiring down to plow depth.  Some leases may go beyond this clause and require the solar company to put up a bond to cover the necessary cleanup costs.  Landowners often request a bond to assist with potential cleanup costs if the solar company defaults on the required cleanup of the facility.  Many state policies related to solar decommissioning also require putting up bonds to cover necessary cleanup costs.  

            As a landowner presented with a solar lease, what should you consider as it relates to decommissioning a solar facility? First, take a moment to consider the location of the facility.  What features exist on that piece of property that need to be restored?  How do you want to see the site restored? Next, negotiate how the site should be restored to allow the land to return to productive agricultural use.  Take photos to demonstrate the current conditions and to give future parties an understanding of what the site initially looked like.  Taking the time to document the land’s condition and negotiate a decommissioning clause that considers state policies at the time will allow for the site to be decommissioned in a way that reduces potential conflicts in the future.

Table 1.  Summary of State Decommissioning Regulations in the South

State	Decommissioning Regulations	State Code/Legislative Citation	Date Enacted
Alabama	No state-wide decommissioning regulations
Arkansas	No state-wide decommissioning regulations
Florida	No state-wide decommissioning regulations
Georgia	A model ordinance was developed for local governments
Kentucky	Decommissioning plan required with financial assurance.	Ky. H.B. 4 – 2023 Reg. Sess.	30-Mar-23
Louisiana	Decommissioning plan required with financial assurance.	La. Rev. Stat. § 30:1154	2-Aug-22
Maryland	Decommissioning plan required with financial assurance.	Md. Code Regs. 27.01.14.04	8-Mar-21
Mississippi	No state-wide decommissioning regulations
North Carolina	Legislative action pending.
Oklahoma	Decommissioning plan required.	60 Okla. Stat. § 820.1	13-Apr-11
South Carolina	Legislative action pending.
Tennessee	Decommissioning plan required with financial assurance.	Tenn. Code § 66-9-207	1-Jun-22
Texas	Decommissioning plan required with financial assurance.	Tex. Util. Code § 302.0004	1-Sep-21
Virginia	A locality must require a lessee to have a decommissioning plan	Va. Code Ann. § 15.2-2241.2	21-Mar-19

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Goeringer’s work is supported by the Agriculture and Food Research Initiative (AFRI) program, grant no. 2020-68006-31182/project accession no. 1022637, from the U.S. Department of Agriculture, National Institute of Food and Agriculture.  Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author. They should not be construed to represent any official USDA or U.S. Government determination or policy.

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Goeringer, Paul, and Bart L. Fischer. “Riding off into the Sunset: State Policies and Contract Provisions That Impact Decommissioning a Solar Facility.” Southern Ag Today 3(18.5). May 5, 2023. Permalink

Image Credit: A herd of cattle grazing near a solar panels by Dzmitry Palubiatka