Local governments take aim at Michigan’s wind, solar law in new lawsuit

• Lawsuit says Michigan erred in implementing law that lets state overrule local governments on big energy projects
• Local resistance has delayed Michigan’s implementation of green energy projects
• Opponents say locals know best if wind and solar farms are good for their communities

This reporting is made possible through a partnership between IPR and Grist, a nonprofit environmental media organization.

A lawsuit is challenging how Michigan plans to approve big renewable energy projects.

More than 70 townships and several counties are suing the Michigan Public Service Commission, challenging whether the commission went through the right process to put in place a law giving the state authority to approve those projects.

The action, filed on Nov. 8, could affect solar, wind and battery storage are developed across Michigan.

When Michigan’s Democrat-controlled Legislature passed the renewable energy siting law Public Act 233 last year, it gave the commission authority to approve large-scale renewable energy projects like solar and wind.

That allows renewable energy developers to go around local governments, many of which have slowed or denied projects in the past.

Part of a bundle of climate legislation, it aimed to clear a path for more renewable energy and help the state meet clean energy goals and reduce greenhouse gas emissions.

Supporters said Michigan’s law is an important step toward allowing more renewable energy. Critics said it wrests control away from local governments that know what’s best for their communities and are reflecting the desires of their residents.

In October, the commission detailed its plans for implementing the law.

This appeal is not challenging the law itself, but rather the process the Michigan Public Service Commission plans to use to carry it out. The local governments say in court documents that the commission didn't follow the proper channels to issue the order, which they say undermines the local control that is included in the law.

Among the appellants are northern Michigan’s Elmwood and Joyfield townships, and Escanaba and Garden townships and Schoolcraft County in the Upper Peninsula. Most others are downstate.

What’s at issue

Under the law, if a developer wants to build a solar farm, for example, it must go first to the local government, provided the local government has what’s known as a “compatible renewable energy ordinance,” which is a local law that complies with specific state guidelines.

If the local law is incompatible with those guidelines, like if it's more restrictive, the Michigan Public Service Commission says developers can go directly to the state for project approval.

Related:

• UP mine sees recycling as path to more EV minerals and a greener image
• Michigan House OKs tax breaks to lure Google, Microsoft data server farms
• Michigan’s PFAS drinking-water limits hang in balance of Supreme Court case

But in their appeal, the local governments say the state’s order goes beyond what the Legislature put into law.

"It attempts to rewrite the legislation, and the MPSC has no business doing that," said Michael Homier, an attorney with the firm Foster Swift Collins & Smith, representing the plaintiffs.

The local governments, Homier said, want to retain the control promised them in the law, which the commission’s administrative order threatens.

A spokesperson for the commission said because of the lawsuit, they couldn’t comment.

While legal action like this isn’t exactly unexpected, this appeal has gained some attention, like the climate site Heatmap News saying last week that it may be “the most important legal challenge for the renewables industry in America.”

There have been a variety of approaches to getting more renewables built, from the University of Michigan’s Renewable Energy Academy to help local jurisdictions draft compatible ordinances to the state’s recent effort to offer money for communities to approve big projects. And states like Illinois and Minnesota have passed similar legislation curtailing the power of local governments to restrict renewable development.

This kind of legal challenge shows how rocky this road can be.

Need for clarity

Sarah Mills, a professor of urban planning at the University of Michigan and director of the university’s Center for EmPowering Communities, said parts of the law are clear, like sections on setbacks, lighting and height.

But then it gets murky.

“There’s a whole bunch of things that are traditionally regulated for renewable energy projects that are not mentioned in the law,” she said, like whether developers can be required to plant trees and bushes or ground cover.

The commission’s order says for a local ordinance to be considered compatible, it can’t include restrictions on things not included in the law. The appeal disagrees.

“That's not the state of the law, and frankly, it rewrites the legislation, because it doesn't say that,” Homier said.

The lawsuit also takes issue with which local governments need these ordinances.

Counties overlap with townships, cities, and villages, for instance, but under the commission's order only the zoning authority would qualify. The appeal argues more than one entity should be included.

Mills points out this would affect how much money would go to them for these projects. Along with legal fees for certain cases, the state’s law says communities where large projects are located would receive $2,000 per megawatt, which the developer would pay.

“If the affected local unit of government isn't only the zoning jurisdiction, then the developer would need to pay $2,000 to the county and to the township. So it would be $4,000 per megawatt,” Mills said, in which case “developers are going to have to pay more money.”

Mills said the commission did a lot to engage the public and those affected before defining its process.

And the commission has made clear that developers can get zoning permission through existing processes under other local ordinances, she said. If the developer decides that the local ordinance isn’t workable, they can take the project to the state.

Another point in the appeal questions which projects are eligible. In the law, large-scale projects include solar arrays of at least 50 megawatts, wind farms of at least 100 megawatts, and energy storage facilities with a capacity of at least 50 megawatts and discharge of 200 megawatt hours or more.

It holds that the order shouldn’t weigh in using terms like “hybrid facilities” that aren’t in the original law. It also holds that solar or wind arrays and battery storage facilities should be counted separately — doing so would give local ordinances more power.

Mixed feelings

Those represented in the appeal are a minority of local jurisdictions; Michigan has 83 counties and more than 1,200 townships.

And stepping back, proponents of the law think it’s necessary to help increase renewable energy.

Clyde Taylor, 84, is a farmer who grows hay in Isabella Township, just north of Mount Pleasant. The township is among those suing, though Taylor hasn’t looked into the lawsuit.

He’s allowing a developer to build a solar array on around two dozen acres of his land. While he has “mixed feelings” about the state’s siting law, he generally supports it.

“We have to have laws on the books to make this thing fly,” he said, referring to renewable energy. “And they've made it fair enough. I mean, the fact that anything 50 megawatts and under is still under control of the local government.”

The local governments are asking the Court of Appeals to vacate some or all of the commission’s order, and to prohibit the commission from enforcing it while the appeal is ongoing.

What it comes down to, Homier said, is the scope of the commission’s authority. If the lawsuit is successful, he said, the commission would be able to weigh in on developers’ applications, but not on the law itself.

The law is set to go into effect on Nov. 29.