County Obligation

Obligations and Potential Actions for Rains County Commissioners and County Judge to Address Solar Farm and Battery Energy Storage System (BESS) Projects

 Executive Summary

Rains County, Texas, faces imminent development of renewable energy infrastructure, including the Barrett Solar Project (a 125-126 MW solar farm expected online in February or March 2026) and a BESS facility scheduled for completion in April 2027, with another application in process. These projects raise significant concerns due to the county’s shallow water table and proximity to Lake Tawakoni and Lake Fork, which supply drinking water to multiple municipalities, including Dallas. Potential risks include groundwater contamination from damaged solar panels or BESS leaks, soil erosion leading to sedimentation in waterways, and stormwater runoff exacerbating flooding or pollution.

This document outlines the obligations of Rains County commissioners and the county judge under their oaths to the U.S. and Texas Constitutions, incorporating the doctrine of the lesser magistrate, and details actionable paths to regulate, delay, or potentially halt these projects, supported by legal precedents, state opinions, and environmental evidence.

Section 1: Obligations Under Oaths and the Doctrine of the Lesser Magistrate

Rains County commissioners and the county judge, as elected officials, swear oaths to uphold the U.S. Constitution and the Texas Constitution (Texas Const. art. XVI, § 1). This includes a duty to protect public health, safety, and welfare, as counties are empowered under Texas Health and Safety Code § 121.003 to enforce laws promoting these ends.

In the context of environmental threats, this oath implies a responsibility to safeguard natural resources like groundwater and lakes, which are vital to residents and downstream communities.

The doctrine of the lesser magistrate, rooted in Reformation-era thought (e.g., the Magdeburg Confession of 1550 and works by John Calvin and Theodore Beza), provides a framework for local officials to resist higher authorities when they perceive actions as tyrannical, unconstitutional, or harmful to the public. As “lesser magistrates,” county officials have both the right and duty to interpose—refusing to implement or actively opposing—state or federal policies that enable projects posing undue risks, such as those subsidized by federal incentives (e.g., Inflation Reduction Act) without adequate local safeguards. This doctrine has been invoked in modern contexts, like governors resisting federal mandates (e.g., Florida Gov. Ron DeSantis on various issues), and could apply here if projects are seen as violating property rights, due process, or environmental protections under the Constitution. While not a formal legal doctrine in Texas courts, it aligns with officials’ oaths to prioritize constitutional duties over conflicting statutes, potentially justifying resistance to unregulated energy developments that threaten watersheds.

Section 2: Legal Authority and Limitations

Texas counties are subdivisions of the state with no inherent sovereignty (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)). They lack broad zoning authority in unincorporated areas and cannot outright ban solar farms or BESS under state law, as confirmed by Texas Attorney General Opinion AC-0003 (2023), which states that commissioners courts have no specific authority to impose comprehensive moratoriums on solar facilities encompassing siting, construction, operation, permitting, and licensing. (Direct link to opinion: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/ac-0003.pdf)

Attempts to stretch road (Transportation Code) or health (Health and Safety Code § 121.003) authorities to ban projects would likely be deemed invalid if challenged in court.

However, counties retain tools to regulate impacts: enforcing nuisance laws, adopting resolutions, imposing conditions on tax abatements (Tax Code Chapters 312 and 313), and implementing limited ordinances on health, safety, and infrastructure. These align with the lesser magistrate doctrine by allowing interposition without outright nullification, focusing on site-specific harms like water contamination.

Section 3: Actionable Paths to Regulate or Halt Projects

Rains County officials can pursue the following steps, drawing from successful examples in other counties:

1. **Adopt a Resolution Opposing the Projects**: Pass a non-binding resolution citing safety, economic, and environmental concerns, similar to Gillespie County’s 2025 resolution against BESS, which stalled a 145 MW project by signaling community opposition and deterring developers. Frame it under the doctrine as a duty to protect against “tyrannical” overreach, urging state intervention (e.g., supporting bills like past HB 1343 or SB 819 analogs for BESS regulations). This could pressure developers to withdraw or negotiate setbacks (e.g., 200-750 feet from water bodies).
2. **Impose a Temporary Moratorium**: Enact a limited moratorium (up to 180 days) on new solar/BESS approvals, tied to health/safety reviews, as in Van Zandt County’s 2026 indefinite pause on green energy projects amid AG investigations into foreign components. While AG Opinion AC-0003 limits broad moratoriums, a narrow one focused on environmental assessments (e.g., TCEQ stormwater permits) may hold, especially if justified by watershed risks. Use this time to develop ordinances requiring environmental impact studies.
3. **Leverage Tax Abatements and Incentives**: Under Tax Code Chapters 312/313, designate reinvestment zones and attach conditions to abatements, such as mandatory groundwater monitoring, erosion controls, or bonds for decommissioning. Deny abatements if projects fail to meet criteria, effectively making them uneconomical. Public hearings are required, amplifying resident input.
4. **Enforce Local Ordinances and Codes**: Adopt rules on nuisances, fire safety (NFPA 855 for BESS), and stormwater (requiring SWP3 plans under TCEQ’s TXR150000 permit). Cite evidence of past violations, like sediment runoff from solar farms in Northeast Texas contaminating creeks.
5. **Apply Additional Enforcement and Advocacy**: Appoint or contract independent environmental experts/hydrologists to assess site-specific risks and submit findings to TCEQ or PUC. File comments in ERCOT interconnection proceedings or PUC dockets if applicable. Partner with neighboring counties or statewide groups (e.g., via Texas Conservative Coalition) to push for legislative changes. If warranted, support citizen-led lawsuits on nuisance, takings, or due process grounds (though success varies).

Current Project Status (February 25, 2026)

– **Barrett Solar Project**: ~125-126 MW solar farm in Rains County. Still in ERCOT interconnection queue (active, proposed completion March 16, 2026 per interconnection data; some trackers list February/March 2026 COD). Construction underway (PCL awarded EPC contract). No full commercial operation yet. Key sources: https://www.interconnection.fyi/project/ercot-24inr0477  and https://cleanview.co/planned-solar-projects/TX/69359_BARS1/barrett-solar-project

– **BESS Projects**: At least one targeted for ~April 2027; applications/concerns ongoing. No major operational BESS in county yet. Rains County Commissioners Court agendas (e.g., February 26, 2026 meeting) explicitly discuss “new battery energy storage systems (BESS) and other green energy projects.” Agenda PDF: https://www.co.rains.tx.us/upload/page/2844/02-26-26.pdf