Is the Arkansas Wind Energy Development Act's April 9, 2025 'under development' exemption deadline constitutional, given that the Act took effect August 5, 2025 with no emergency clause? And does it apply to leases signed between those two dates?

Plain-English summary

The Arkansas Wind Energy Development Act (originally Act 945 of 2025, recodified as Subchapter 14) imposes new substantive requirements on wind energy projects: setbacks, environmental impact assessments, acoustic limits, preconstruction noise modeling, emergency procedures, financial security for decommissioning, insurance, and more. Projects "under development" as of April 9, 2025 are exempt. Senator Ronald Caldwell asked the AG whether this April 9 deadline is constitutional given that the Act itself didn't take effect until August 5, 2025 (no emergency clause), and whether projects that signed leases between April 9 and August 5 qualify for the exemption.

Attorney General Tim Griffin's three answers:

Question 1: Is the April 9 deadline constitutional?

Yes. Three sub-questions:

• Does Article 5, Section 1 prohibit retroactive laws? No. Article 5, Section 1 protects initiative and referendum power; it doesn't bar retroactive legislation generally. The Arkansas Supreme Court in State v. Kline (1861) settled this: "The proposition that a statute is void merely because its terms are retroactive, cannot be maintained."
• Did the legislature need an emergency clause to make the deadline retroactive? No. Emergency clauses make legislation immediately effective; they're not required to support retroactive provisions.
• What about the rulemaking deadline? Article 5, Section 1 doesn't require rulemaking to precede a law's effective date. Under the Arkansas APA (§ 25-15-204), notice-and-comment rulemaking can't begin until the underlying legislation is enacted.

The constitutional analysis distinguishes:

• Strong retroactivity: changes the past legal consequences of a past action. Generally constitutional only if it doesn't impair vested rights or violate ex post facto / due process / takings / contract clauses.
• Weak retroactivity: uses a past date as a reference point for future obligations. Not technically retroactive in the strong sense.

The April 9 exemption is weakly retroactive. It uses the April 9 date as the cutoff for who is grandfathered, but the substantive obligations (setbacks, etc.) only kick in when the Act takes effect on August 5. No vested rights are impaired (signing a lease doesn't create a right to be free from future regulation, per United States v. Locke).

Question 2: Do projects with leases signed between April 9 and August 5 qualify for the exemption?

No. The exemption requires the project to be "under development" as of April 9. A lease signed April 10 (or later) doesn't qualify under § 23-18-1403(15)(1) (which lists executed land leases as one way to qualify). The retroactive structure means the exemption window closed on April 9 even though the Act didn't take effect until August 5.

Question 3: Are projects that sign leases before PSC rulemaking is complete exempt?

No. The Act doesn't condition substantive obligations on completion of PSC rulemaking. Once the Act took effect on August 5, all non-exempt projects are subject to its requirements regardless of when PSC finalizes its rules.

What this means for you

If you're a wind energy developer

Three timeline checkpoints:

1. April 9, 2025: the cutoff for the "under development" exemption. If you had executed leases, started state/federal studies, or commenced construction before this date, you're exempt.
2. August 5, 2025: the Act became effective. Any project not exempt is now subject to setback requirements, EIAs, acoustic limits, decommissioning bonds, etc.
3. January 1, 2026: PSC rulemaking deadline. After this, the rules implementing the Act take effect. But the substantive statutory obligations apply regardless of whether rulemaking is complete.

If you signed a lease April 10-August 5, 2025, you're not exempt. You can still proceed, but you have to comply with the Act's requirements going forward.

If you're a landowner with a wind energy lease

The Act's obligations fall on the developer, not on you. Your lease terms govern your rights vis-à-vis the developer. If your developer is non-compliant after August 5, that's their problem under the Act; check your lease for termination/cure provisions.

If you signed a lease April 10-August 5 and your developer hasn't followed up on permitting, expect delays. The developer may need to redesign the project to meet setback rules.

If you're a utility-law attorney advising a wind project

Three points to walk clients through:

1. The under-development exemption is narrow and date-specific. Don't assume earlier-stage projects are exempt; check the three statutory qualifiers (executed leases, state/federal studies, construction commencement) against April 9 documentation.
2. The Act imposes substantive obligations independent of PSC rules. Don't wait for the PSC final rules; build compliance now into project design.
3. The retroactivity analysis here is favorable to the legislature. Constitutional challenges to the April 9 deadline are unlikely to succeed.

If you're at the Public Service Commission

The Commission has until January 1, 2026 to finalize rules under § 23-18-1419(a). The Act's substantive obligations apply to non-exempt projects from August 5 forward, so the Commission's rules need to address operationalizing those obligations. The retroactive exemption reduces the scope of immediate enforcement (existing projects are exempt), but new projects need to be ready to comply with both statutory requirements and forthcoming rules.

If you're a state legislator considering similar retroactive cutoffs

This opinion provides a clean roadmap for retroactive grandfathering deadlines. Key principles:

1. Clear, specific cutoff date.
2. Substantive obligations that take effect prospectively (on the Act's effective date).
3. The cutoff itself is just a reference point; it doesn't impose new affirmative duties on past conduct.

This pattern survives constitutional challenge. The contrasting pattern, imposing affirmative duties on conduct that occurred before the Act's effective date (as in Op. 91-101 regarding tangible personal property assessment): does not.

Common questions

Q: Is "no emergency clause" a constitutional problem here?
A: No. The Arkansas Constitution requires an emergency clause for legislation that needs to take effect before the 90-day post-session referendum window expires. Without a clause, the Act takes effect on August 5 (the regular effective date). The retroactive exemption deadline is separate from the effective date and doesn't require an emergency clause.

Q: What's "weak" versus "strong" retroactivity?
A: A "strongly retroactive" law alters the past legal consequences of a past action, for example, criminalizing conduct that was legal when it occurred. A "weakly retroactive" (or "secondarily retroactive") law uses a past date for future obligations: for example, this Wind Energy Act's April 9 cutoff for an exemption that operates after August 5. Strong retroactivity requires careful constitutional analysis. Weak retroactivity is generally upheld.

Q: Does signing a lease give me a "vested right" to be free from regulation?
A: No. United States v. Locke (1985) held that the regulation of property rights is not a taking when individuals can still realize their investment-backed expectations by complying with reasonable regulations. Signing a lease is just a contract; it doesn't immunize the project from the state's police power to regulate.

Q: What are the new substantive obligations?
A: From the AG's list:
- Setback requirements
- Environmental impact assessments by qualified third-party experts
- Acoustic emission limits
- Preconstruction noise modeling and enforcement
- Emergency procedures
- Financial security for decommissioning
- Insurance

Q: Does the Act apply to existing wind projects?
A: Existing projects (those that were "under development" by April 9, 2025) are exempt. New projects (post-April 9) are subject to the Act's requirements.

Q: What about leases signed before April 9?
A: Pre-April 9 leases qualify for the exemption (assuming they meet the other under-development criteria). The Act doesn't disturb those rights.

Background and statutory framework

Arkansas legislation generally takes effect 90 days after the session ends, unless an emergency clause is included to make it immediately effective. Acts 940 and 945 of 2025 each added a Subchapter 13 to Title 23, Chapter 18, creating a conflict that the Code Revisor renumbered (Act 945's Wind Energy Development Act now appears as Subchapter 14).

The federal retroactivity framework comes from Landgraf v. USI Film Products, 511 U.S. 244 (1994), which requires courts to determine whether a statute attaches new legal consequences to events completed before its enactment, and to read the statute's intended reach.

Arkansas law follows similar lines. State v. Kline (1861) is the foundational holding that retroactive statutes are not categorically void. Modern doctrine refines the test: retroactive provisions are valid unless they impair vested rights, interfere with contractual obligations, or impose new substantive duties on past conduct (Hardin v. Fort Smith Couch & Bedding Co., Archer v. Sisters of Mercy Health Sys.).

The "weak retroactivity" framing the AG uses traces to multiple federal-circuit and state cases (the AG cites E.D. Ark., D.C. Cir., 5th Cir., 9th Cir., California, New Jersey, plus a Daniel Troy law-review article). The doctrinal label varies ("strong/weak," "primary/secondary," "true/secondary"), but the substance is the same: a law that uses a past date as a reference point for future obligations is generally upheld.

The AG distinguishes the prior Op. 91-101 (Act 860 of 1991) where the AG concluded that an affirmative duty (assessing tangible personal property) imposed before the effective date couldn't be enforced. The Wind Energy Act's exemption operates passively, it doesn't impose duties on April 9 conduct, it just identifies which projects are exempt going forward.

Citations and references

Statutes:
- A.C.A. §§ 23-18-1401 to -1420, Arkansas Wind Energy Development Act
- A.C.A. §§ 25-15-201 to -204: Arkansas APA
- Ark. Const. art. 2, §§ 8, 17; art. 4, §§ 1, 2; art. 5, § 1

Cases:
- State v. Kline, 23 Ark. 587 (1861), retroactive laws not categorically void
- Hardin v. Fort Smith Couch & Bedding Co., 202 Ark. 814, 152 S.W.2d 1015 (1941)
- Archer v. Sisters of Mercy Health Sys., St. Louis, Inc., 375 Ark. 523, 294 S.W.3d 414 (2009)
- Fulkerson v. Refunding Bd, 201 Ark. 957, 147 S.W.2d 980 (1941)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994)
- United States v. Locke, 471 U.S. 84 (1985), vested rights and reasonable regulation

Reference:
- 2 Norman J. Singer & Shambie Singer, Sutherland Statutory Construction § 41:1, § 41:2 (8th ed., 2024)
- Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012)
- Daniel E. Troy, Toward a Definition and Critique of Retroactivity, 51 Ala. L. Rev. 1329 (2000)

Related AG opinions:
- Op. 91-101 (affirmative-duty retroactivity not enforceable without emergency clause; distinguishable)
- Op. 2025-032 (effective date of legislation absent emergency clause)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

Opinion No. 2025-054

December 3, 2025

The Honorable Ronald Caldwell
State Senator
120 CR 393
Wynne, Arkansas 72396

Dear Senator Caldwell:

I am writing in response to your request for an opinion on the constitutionality of the retroactive exemption deadline found in Act 945 of 2025, the Arkansas Wind Energy Development Act (the "Act"). You state that because the Act lacked an emergency clause, it became effective on August 5, 2025. Had the General Assembly included a valid emergency clause under article 5, section 1 of the Arkansas Constitution, the Act could have taken effect immediately.

You state that the Act exempts wind energy projects "under development" as of April 9, 2025. A project qualifies as "under development" if it has (1) executed land leases; (2) begun required state or federal studies related to construction; or (3) started construction. Finally, you state that the Act requires the Arkansas Public Service Commission ("PSC") to develop rules by January 1, 2026.

Against this background, you ask the following questions:

1. Does the retroactive exemption deadline of April 9, 2025, violate article 5, section 1 of the Arkansas Constitution on the grounds that:

a. It precedes the effective date of the Act;
b. It precedes the Public Service Commission rulemaking deadline; and
c. The General Assembly did not include an emergency clause to justify the retroactivity?

Brief response: No. Nothing in Article 5, § 1 of the Arkansas Constitution prohibits retroactive laws.

2. If the answer to Question 1 is no, is the retroactive exemption deadline of April 9, 2025, otherwise not applicable to a wind energy project that executed land lease agreements after April 9, 2025, (but before the effective date of the Act) in light of Attorney General Opinion No. 91-101 and both the fact that:

a. The exemption date still precedes the effective date of the Act; and
b. The absence of an emergency clause undermines any claim of necessity for retroactive application?

Brief response: Yes, wind energy projects that executed land leases after April 9, 2025, but before the Act's effective date of August 5, 2025, do not qualify for the exemption.

3. If the answer is yes to either or both of the foregoing questions, would a wind energy project that executes leases prior to the finalization of the Public Service Commission's rulemaking be exempt from the Act?

Brief response: No, executing leases before the Public Service Commission's rules are finalized does not exempt wind energy projects from the Act's requirements.

DISCUSSION

The Arkansas Wind Energy Development Act imposes new substantive obligations on wind energy developers. These include, but are not limited to:

• Setback requirements.
• Environmental impact assessments by qualified, third-party experts.
• Acoustic emission limits.
• Preconstruction noise modeling and enforcement.
• Developing emergency procedures.
• Establishing financial security for decommissioning.
• Insurance requirements.

The Act exempts wind energy projects deemed "under development" as of April 9, 2025. By implication, all other projects, those not qualifying for the exemption, must comply with the Act once it becomes effective on August 5, 2025. This implicit mandate, rather than the exemption itself, raises constitutional questions addressed below.

Question 1: No, the retroactive exemption in A.C.A. § 23-18-1418 does not violate Article 5, § 1 or any other provision of the Arkansas Constitution. A retroactive provision may precede a legislative act's effective date and remain valid, without an emergency clause, so long as it does not unlawfully impair vested rights, interfere with contractual obligations, or impose new substantive duties. Likewise, nothing in the Arkansas Constitution prohibits a retroactive provision from preceding a rulemaking deadline.

1.1 Retroactivity and constitutional limits. Retroactive provisions are not inherently unconstitutional. The federal and the Arkansas Constitutions prohibit only specific types of retroactive laws, including bills of attainder, ex post facto laws, and laws that impair contracts or violate the Due Process Clause, Takings Clause, or principles of separation of powers. The Arkansas Constitution provides equivalent protections in each of these areas. A retroactive law is unconstitutional if it falls within one of the prohibited categories, such as impairing contracts or violating due process.

1.2 Retroactivity analysis. The exemption in A.C.A. § 23-18-1418 is retroactive because it impliedly alters the legal consequences of a past action or event. It does so by requiring any wind energy projects that fail to qualify as "under development" under A.C.A. § 23-18-1403(15) by April 9, 2025, to comply with the Act's requirements, even though the Act is not effective until August 5, 2025. But there are different types of retroactivity, a distinction that helps clarify how the Act operates.

A law can be retroactive in two ways, which are sometimes called "strong" or "weak." A law is strongly retroactive if it alters the past legal consequences of a past action or event in the past. A law is weakly retroactive when it alters the past legal consequences of a past action or event only at and after the act's effective date.

The Act's exemption is weakly retroactive. It does not alter the legal status of actions taken before the Act's effective date. Instead, it uses a past date (April 9, 2025) to determine which projects are exempt from future obligations. In doing so, the Act does not impose new duties or penalties on completed actions but merely references those actions to establish future compliance requirements.

Importantly, the Act does not retroactively impair vested rights as it does not revoke any rights legally acquired before its effective date. For instance, entering into a land use lease after April 9, 2025, but before August 5, 2025, does not create a vested right to avoid future regulation.

Finally, the Act does not interfere with existing contractual obligations. It does not invalidate or alter the terms of leases or agreements executed before the Act's effective date. The Act's obligations, such as setback requirements, environmental assessments, and insurance mandates, apply only prospectively.

One might contend that, although the Act's requirements are technically prospective, they function in practice as of April 10, 2025, because any wind energy project that does not qualify for the exemption must ultimately comply with the Act once it takes effect. For example, a non-exempt developer might construct a wind turbine after April 9, 2025, in a location that does not meet the Act's setback requirements, only to be required to relocate the turbine after the Act becomes effective.

Even in that scenario, the Act operates prospectively because the obligation to comply arises only upon the Act's effective date. While this may raise fairness concerns, the mere possibility of unfairness does not override the legislature's intent. Thus, projects that do not qualify for the exemption must comply with the Act's requirements after the Act becomes legally effective, not before.

1.3 Constitutional analysis. Nothing in article 5, section 1 of the Arkansas Constitution prevents the retroactive exemption in A.C.A. § 23-18-1418 from preceding the Act's effective date. Article 5, section 1 is chiefly concerned with protecting the initiative and referendum power reserved to the people of this state. The retroactive exemption does not affect the people's right to petition for a referendum or make the Act immediately effective. Instead, it applies the Act's rules to events or actions that were complete before the Act's effective date, but that application is only on and after the Act's effective date.

Likewise, article 5, section 1 of the Arkansas Constitution does not reference rulemaking deadlines, nor does it imply that rulemaking must precede a law's effective date for it to be constitutional. The Act does not require enforcement before the Arkansas Public Service Commission promulgates its rules. In fact, the retroactive exemption reduces the need for immediate enforcement, since projects under development as of April 9, 2025, are exempt from the Act.

Moreover, the Arkansas Administrative Procedures Act, codified in A.C.A. § 25-15-201 et seq., governs the rulemaking process in Arkansas. Arkansas Code § 25-15-204 requires agencies, like the Arkansas Public Service Commission, to follow notice-and-comment procedures for rulemaking, a process that could not occur before legislation is enacted. It is common for regulatory statutes, such as the Arkansas Wind Energy Development Act, to become effective before the rulemaking process is complete.

Finally, the General Assembly is not required to include an emergency clause to justify a retroactive exemption. As explained above, retroactive provisions are not inherently unconstitutional.

Question 2: Yes, the retroactive exemption is not applicable to wind energy projects that executed land lease agreements after April 9, 2025, but before the Act's effective date of August 5, 2025, assuming none of the other conditions for qualifying for the exemption have been met before April 9, 2025.

As explained above, a retroactive provision may precede an effective date. The inclusion of a retroactive provision does not make a legislative act immediately effective. Thus, the absence of an emergency clause does not invalidate a retroactive provision.

Your question references Attorney General Opinion No. 91-101. That opinion addressed Act 860 of 1991, which required taxpayers to assess their tangible personal property before the law's effective date. My predecessor concluded that, absent an emergency clause, the requirement to assess tangible personal property before the effective date could not be enforced.

The retroactive exemption found in A.C.A. § 23-18-1418 differs significantly. Act 860 imposed an affirmative obligation, requiring taxpayers to assess tangible personal property before the law became effective. In contrast, the retroactive exemption in the Wind Energy Development Act operates passively: it relieves qualifying wind energy projects from future compliance without requiring any action before the Act takes effect. Here, no action is required before the effective date, and the exemption merely identifies which projects will be subject to future obligations.

Therefore, projects that executed land lease agreements after April 9, 2025, but before August 5, 2025, do not qualify for the exemption and must comply with the Act. While the Act does not impose any legal obligations before August 5, 2025, non-exempt developers who intend to begin projects before that date need to prepare for compliance in advance to avoid delays, disruptions, or violations once the Act becomes effective and the PSC rulemaking is complete.

Question 3: Wind energy projects are not exempt from the requirements of the Act merely because they execute a lease before the Arkansas Public Service Commission finalizes its rulemaking. As discussed above in section 1.3, the Act became effective on August 5, 2025, and it applies to all nonexempt projects from that date forward, regardless of when the PSC completes its rulemaking.

Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General