Can an Arkansas city or county replace a retiring power plant with a wind project, and can it put a specific wind project up for a public vote?
Subject
Two questions about wind energy and local government in Arkansas: whether a city or county can use a wind project subject to Act 945 of 2025 to replace a retiring "dispatchable" facility under A.C.A. § 23-18-1303, and whether a city or county can put a specific wind project on the ballot for voter approval. AG Tim Griffin answered no to both, in an opinion prepared by Assistant AG Justin Hughes.
Plain-English summary
Two separate questions, two clean no's, both grounded in how Arkansas defines its terms.
On the replacement question: Arkansas law (A.C.A. § 23-18-1303) lets a utility retire an electric generation facility only if the Public Service Commission finds the retirement is in the public interest. There is a rebuttable presumption against retirement, and the utility has to demonstrate, among other things, that the replacement assets are "dispatchable," maintain or improve grid reliability, and have equal or greater capacity. The statute defines "dispatchable" as not "intermittent." It defines "intermittent" to include any generation that harnesses wind, "whether through a turbine or other device." Wind is therefore not dispatchable under the statute's own definitions. So a city or county cannot use a wind project to replace a retiring dispatchable facility. The PSC could not approve such a swap.
On the ballot question: Arkansas distinguishes legislative acts from administrative ones. The initiative-and-referendum process under Ark. Const. art. 5, § 1 is reserved for legislation. Approving or denying a specific wind energy project is an administrative decision, not legislation. So a city or county cannot place a single wind project on the ballot for an up-or-down vote. Also, in the county context, only qualified electors can initiate a referendum (the quorum court itself cannot refer a measure). A city's legislative body can refer legislative ordinances to voters; a county's cannot.
The opinion does leave a path open. A city or county can pass general-applicability legislation regulating wind facilities, for example local permitting standards layered on top of the PSC's role, and the local legislative ordinance setting those standards is itself subject to referendum (if properly initiated). A specific permit decision under the standards remains administrative.
The opinion is short, ~3 pages, and turns almost entirely on the statutory definitions and a long-standing line of Arkansas Supreme Court cases on legislative-vs-administrative classification.
What this means for you
If you are a city or county official planning around utility retirements
If a utility serving your area is retiring a coal, gas, or other dispatchable plant under A.C.A. § 23-18-1303, you cannot count on a wind project to fill the gap as the official replacement. The PSC will not approve that swap because the statute requires "dispatchable" replacement. Your planning has to assume the replacement will be another dispatchable resource (natural gas, nuclear, coal, hydro, certain forms of solar with storage, depending on how "dispatchable" is read in future opinions). Wind can be added on top, but it does not satisfy the replacement requirement.
If you are a wind energy developer
This opinion narrows your role in Arkansas. Wind projects can still go forward through the usual PSC and local-permitting routes, but a wind project cannot be the legal vehicle for "retiring" a dispatchable plant. If your business model assumed pairing wind with retirements as a regulatory hook, that hook is closed. Watch for future legislation that might pair wind with battery storage and label the combination "dispatchable," but on the current statutes, wind by itself is not.
If you are a city or county leader trying to slow or block a specific wind project
You cannot put a specific wind project on the ballot for voters to kill. The administrative-versus-legislative line forecloses that route. What you can do is pass a general-applicability local ordinance setting permitting criteria for wind facilities (for example, setbacks, noise standards, decommissioning bonds). That ordinance is legislative, can be referred to voters, and applies prospectively to all projects. The downside: it has to be neutrally drafted; it cannot single out one developer's project.
If you are a county quorum court member
Note the asymmetry the opinion calls out: the city legislative body can refer ordinances to voters, but the county legislative body (the quorum court) cannot. Only qualified electors can initiate a county referendum under A.C.A. § 14-14-914 and Ark. Const. art. 5, § 1. So the quorum court's tools are passing or amending the local ordinance directly, not putting it to a county-wide vote on its own motion.
If you are an Arkansas resident concerned about a specific project
Your direct vote on a single project is not available. The legal path for citizen input runs through (a) initiating a county referendum (qualified-elector-led) on a general permitting ordinance, (b) participating in PSC proceedings and local permitting hearings, and (c) participating in city council or quorum court meetings where the legislative ordinance is being drafted.
If you are a journalist covering Arkansas energy policy
The two key statutory definitions to keep in mind: "dispatchable" excludes "intermittent," and "intermittent" expressly includes wind. That is what the opinion turns on. Anyone arguing that wind can replace a retiring plant under § 23-18-1303 is fighting the statute's own text.
Background and statutory framework
Arkansas's electric facility retirement statute, A.C.A. § 23-18-1303, was designed to protect grid reliability when utilities propose to retire major generation assets. The statute creates a rebuttable presumption against retirement and conditions PSC approval on the utility showing, among other things, that the replacement assets are dispatchable.
The relevant definitions live in A.C.A. § 23-18-1302. Section 1302(1) defines "dispatchable" as a source that is not intermittent. Section 1302(4)(B) defines "intermittent" to include wind energy "whether through a turbine or other device." So the statute classifies wind on the intermittent side of the dispatchable/intermittent line.
Act 945 of 2025, codified at A.C.A. §§ 23-18-1401 to -1419, set up the regulatory framework for wind energy facilities specifically. Section 1413 contemplates local permitting layered with PSC approval. Act 945 governs how wind projects are permitted; it does not amend the dispatchable-replacement requirement in § 23-18-1303.
The constitutional distinction between legislative and administrative acts under Ark. Const. art. 5, § 1 (Amendment 7) governs what can be referred to voters. Arkansas case law (Richardson, Scroggins, Chastain, City of N. Little Rock v. Gorman) has consistently held that the referendum power reaches legislative measures only. Project-specific permitting decisions, plat approvals, and similar implementation acts fall on the administrative side.
The county-vs-city referendum asymmetry comes from A.C.A. § 14-14-914 (county initiatives and referendums require qualified-elector petitions), § 14-55-301 (city legislative referrals), and Ark. Const. art. 5, § 1.
Common questions
Why isn't wind "dispatchable" under Arkansas law?
Because the Arkansas Code says so. A.C.A. § 23-18-1302(1) defines a dispatchable source as one that is not "intermittent." A.C.A. § 23-18-1302(4)(B) defines intermittent to include any generation harnessing wind. The statute does not turn on engineering judgments about whether wind plus storage might be controllable; it just labels wind as intermittent.
Could a city or county pair wind with battery storage to argue the combination is dispatchable?
The opinion does not address that combination directly. The statutory definition of intermittent specifically calls out wind through "a turbine or other device" without addressing storage. A future utility application that paired wind with storage might raise the question, but on the current statute and this AG opinion, an unqualified "wind project" is intermittent.
What does Act 945 of 2025 actually do then?
Act 945 set up a state-level framework for permitting wind energy facilities (codified at A.C.A. §§ 23-18-1401 to -1419). It governs how wind projects get approved, how local governments interact with the PSC, and what local permitting can layer on. It does not change the dispatchable-replacement rule in § 23-18-1303. So Act 945 created the regulatory pathway for wind, but did not promote wind into the dispatchable category.
Why can't a city or county put a specific wind project on the ballot?
Because Arkansas's referendum power is limited to legislative measures. Under cases like Scroggins v. Kerr and Chastain v. City of Little Rock, project-specific permitting and similar implementation decisions are administrative, not legislative. The same rule cited in Richardson v. City of Little Rock Planning Comm'n on plat approvals applies here: when an ordinance sets the standards, applying those standards to a specific application is administrative.
What can a city or county put on the ballot?
A general-applicability legislative ordinance about wind energy permitting standards. For example, a city ordinance setting minimum setbacks from residential zones, noise limits, decommissioning requirements, or visual-impact standards. That ordinance is legislative and can be referred to voters or initiated by petition. A specific project's compliance with those standards is then administrative and not subject to referendum.
Can a county quorum court refer an ordinance to voters on its own?
No. The opinion is explicit: in the county context, "only qualified electors may initiate a referendum through the constitutionally prescribed initiative-and-referendum process." A.C.A. § 14-14-914 and Ark. Const. art. 5, § 1. A city legislative body can refer ordinances; a quorum court cannot. The county-side path is citizen-initiated petitions or a local committee-of-the-whole approach.
Does this opinion prevent local governments from regulating wind at all?
No. A.C.A. § 23-18-1413 specifically contemplates local permitting layered on top of PSC approval. Cities and counties can require local permits and set substantive standards for wind facilities (subject to state preemption limits). The opinion only addresses two specific questions: replacement under § 23-18-1303, and project-specific ballot referrals.
What is the AG's role in approving or denying a wind project?
None directly. The AG issues legal opinions interpreting state law on request. The actual approvals come from the Arkansas Public Service Commission (under § 23-18-1303 for retirements; under Act 945 for wind permits) and the local government (for any layered local permits). This opinion is interpretive, not regulatory.
Citations
The opinion's central authorities, drawn directly from its text:
- Arkansas statutes: A.C.A. § 23-18-1303 (facility retirement requirements); § 23-18-1303(b)(2) and (b)(2)(A) (PSC approval and dispatchable replacement requirement); § 23-18-1302(1) and (1)(B) (dispatchable definition); § 23-18-1302(4)(B) (intermittent definition including wind); § 23-18-1413 (local permitting authority for wind); A.C.A. §§ 23-18-1401 to -1419 (Act 945 of 2025 codified); A.C.A. § 14-14-914 (county initiative-and-referendum); A.C.A. § 14-55-301 (city ordinance referrals).
- Arkansas Constitution: art. 5, § 1; art. 5, § 1 (Amendment 7).
- Session law: Act 945 of 2025.
- Cases on legislative-vs-administrative distinction: Richardson v. City of Little Rock Planning Comm'n, 295 Ark. 189, 747 S.W.2d 116 (1988) (plat approvals are administrative); Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950) (city referendum reaches only legislative action); Chastain v. City of Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945) (annexation election ordinance was not municipal legislation); City of N. Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978) (rate-setting ordinance was legislative and subject to referendum).
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2026-024
April 22, 2026
The Honorable Jessie McGruder
State Representative
Post Office Box 1606
Marion, Arkansas 72364
Dear Representative McGruder:
I am writing in response to your request for an opinion on Act 945 of 2025 and its relationship to A.C.A. § 23-18-1303. Against this background, you ask the following questions:
1. May a city or county government utilize and adopt a wind project subject to Act 945 for a facility being retired pursuant to A.C.A. § 23-18-1303?
Brief response: No. A city or county government may not use and adopt a wind project subject to Act 945 as a replacement for a facility being retired under A.C.A. § 23-18-1303. That statute requires replacement generation assets to be "dispatchable," and wind energy is not "dispatchable" under A.C.A. § 23-18-1302.
2. May a city or county government have a proposed wind project placed by ordinance on a ballot for the voters of the city or county to decide?
Brief response: No, because approval or denial of a particular wind project is generally an administrative decision, while the initiative-and-referendum process is reserved for legislative measures. A city or county may, however, submit to the voters a legislative ordinance of general applicability establishing local permitting criteria for wind energy facilities (if properly referred or petitioned), but not a project-specific permit decision.
DISCUSSION
Question 1: May a city or county government utilize and adopt a wind project subject to Act 945 for a facility being retired pursuant to A.C.A. § 23-18-1303?
No, a city or county may not use and adopt a wind project subject to Act 945 of 2025 (now codified at A.C.A. § 23-18-1401 to -1419) as a replacement for a facility being retired under A.C.A. § 23-18-1303 because wind energy is not considered "dispatchable" within the meaning of A.C.A. § 23-18-1302(1).
The retirement of a dispatchable electric generation facility under A.C.A. § 23-18-1303 is subject to approval by the Arkansas Public Service Commission ("PSC"), which must determine whether the retirement is in the public interest. The statute imposes a rebuttable presumption against retirement and requires the utility to demonstrate, among other things, that the replacement generation assets are dispatchable, maintain or improve grid reliability, and have equal or greater capacity and net capability.
A wind energy project does not satisfy the statutory requirement that replacement generation assets be "dispatchable." Under A.C.A. § 23-18-1302(1), a dispatchable source of electrical power generation is one that is not "intermittent," yet wind energy is specifically defined as an "intermittent" source of energy under A.C.A. § 23-18-1302(4)(B). That subdivision defines "intermittent" to include "[a] source of electrical power that generates energy by harnessing wind energy power or energy, whether through a turbine or other device." Because wind energy is not considered dispatchable, a wind energy project may not be used to replace a facility being retired under A.C.A. § 23-18-1303.
Question 2: May a city or county government have a proposed wind project placed by ordinance on a ballot for the voters of the city or county to decide?
No, a city or county government may not place a proposed wind energy project on the ballot by ordinance for voter approval. The decision to approve or deny a specific wind energy project is generally considered an administrative action, not a legislative one. As such, it falls outside the scope of the initiative-and-referendum process, which is reserved for legislative measures.
(Footnote: See, e.g., Richardson v. City of Little Rock Planning Comm'n, 295 Ark. 189, 191-92, 747 S.W.2d 116, 117 (1988) (holding that approval of a preliminary plat is an administrative act where the subdivision ordinance sets minimum standards). Likewise, if a local zoning ordinance establishes standards for the construction or expansion of a wind energy facility, then approval or denial of that permit is an administrative act.)
(Footnote: Scroggins v. Kerr, 217 Ark. 137, 143, 228 S.W.2d 995, 998 (1950) (a city's referendum power is restricted to legislative action); Chastain v. City of Little Rock, 208 Ark. 142, 146, 185 S.W.2d 95, 97 (1945) (holding that an ordinance calling an annexation election was not "municipal legislation" under Ark. Const. art. 5, § 1 (Amend. 7) and thus not subject to referendum); City of N. Little Rock v. Gorman, 264 Ark. 150, 158, 568 S.W.2d 481, 485 (1978) (applying Ark. Const. art. 5, § 1 (Amend. 7) and holding that a rate-setting ordinance was legislative and subject to referendum).)
While a city's legislative body may refer a legislative ordinance to voters for approval, a county's legislative body lacks that authority. In the county context, only qualified electors may initiate a referendum through the constitutionally prescribed initiative-and-referendum process.
(Footnote: A.C.A. § 14-14-914; A.C.A. § 14-55-301; Ark. Const. art. 5, § 1.)
(Footnote: A.C.A. § 14-14-914; Ark. Const. art. 5, § 1.)
However, a city or county may enact local legislation of general applicability regulating the construction or expansion of wind energy facilities within its jurisdiction. Such legislation may, for example, require that a facility obtain permits from both the local government and the PSC. Although the local permitting criteria established by ordinance may be subject to a referendum (if properly initiated), the subsequent approval or denial of an individual permit application for a particular wind energy project is likely an administrative matter not subject to a public vote.
(Footnote: A.C.A. § 23-18-1413.)
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General