There’s a renewable energy siting showdown simmering in Michigan, where a growing group of municipalities is challenging an order issued last month by the Michigan Public Service Commission (MPSC).
Last week, Lansing law firm Foster Swift Collins & Smith PC filed an appeal on behalf of 79 local governments- six counties and 73 townships- arguing a decision levied by the MPSC on October 10, 2024 attempts to unlawfully strip local governments of their authority to regulate renewable energy projects within their communities.
Public Act 233
The appeal centers around the impending implementation of Public Act 233, a renewable energy siting law passed by the Michigan Legislature about a year ago that takes effect November 29, 2024. PA 233 grants the MPSC the authority to approve large-scale projects: any solar facility with a nameplate capacity of 50 megawatts (MW) or more, a wind energy facility with a capacity of 100 MW or more, and energy storage sites with a nameplate of 50 MW or more and an energy discharge capacity of 200 MWh or greater.
On October 10, the MPSC issued an Order adopting final application filing instructions and procedures to be used by electric providers and independent power producers seeking to obtain a certificate from the Commission. However, according to the group of municipalities now filing suit, the MPSC’s decision overrides local ordinances and zoning regulations and threatens to undermine the ability of municipalities to make the decisions they feel are best for their specific communities while centralizing more power at the state level.
“Our clients spent a very long time going through the act determining what they had to do to comply with PA 233 by the effective date,” explains Michael Homier, chair of the Foster Swift Municipal Practice Group. “And here you’ve got MPSC coming in on October 10th with an order that seems to thwart all of those efforts.”
The MPSC’s decision not only disregards the preferences and concerns of local communities, the law firm contends, but it also violates both state law and constitutional principles of local governance. Some fear the Order could pave the way for unrestrained, top-down development that lacks appropriate community input or safeguards.
And on top of that?
“They invented things out of thin air,” claims Homier. “Things that dont exist in the legislation.”
Problems with the MPSC’s Order
Foster Swift Collins & Smith PC and its coalition of municipalities assert the MPSC Order attempts to rewrite the law that passed the legislature. Homier points out a few glaring issues.
For one, the October Order proposes the MPSC can approve “hybrid energy facilities,” a term that never appears in PA 233. The Order would allow the Commission to combine the nameplate capacities of multiple renewable energy projects to meet the thresholds established in PA 233 (50 MW for solar and batteries, 100 MW for wind), granting them siting control.
“You can’t say we’re just going to add up projects to apply a statute that doesn’t otherwise apply,” argues Homier. “PA 233 doesn’t work that way, it only applies to those larger projects.”
The October 10th Order issued by the MPSC also critically changes the definition of “affected local unit,” which in PA 233 refers to “a unit of local government in which all or part of a proposed energy facility will be located.” In the Order, the Commission determines that an affected local unit is limited to only those that exercise zoning jurisdiction.
“I don’t know where they came up with this stuff,” says Homier.
Proponents of giving the MPSC more oversight argue it will help Michigan achieve its ambitious renewable energy goals more quickly. Pockets of NIMBYism have slowed development, and one could make the point that we don’t have time to waste. Regardless, the chair of the Foster Swift Municipal Practice Group points out, that isn’t what the Legislature voted on.
“This is really a jurisdictional problem, but really, more to the point, it’s changing legislation,” Homier continues. “They’re a bureaucratic agency, not a legislative authority… This Order contains terms invented by three appointed members who don’t have the ability to legislate.”
Retaining local control
Furthermore, Homier insists that none of the 79 municipalities who have signed onto the appeal have a particular problem with renewable energy coming to their communities. They simply want those projects sited responsibly, with regard to factors like transmission lines, interconnection points, preserving farmland, and other locally relevant concerns. Most importantly, they want to ensure they have the right to what’s being built in their own backyards that was promised to them by PA 233, a contentious issue in the debate leading up to the law’s passage.
“We are deeply concerned that the MPSC’s ruling undermines the democratic process by removing the voices of local residents and local officials in decisions that directly impact their communities,” Homier said in a statement. “Local governments have a longstanding responsibility to ensure that developments align with their unique priorities, and this decision threatens to leave them powerless in the face of large-scale renewable energy projects.”
Homier says he expects more local governments may sign on to the appeal, which isn’t likely to be settled anytime soon. A brief is due in mid-January, followed by procedural filings and a whole bunch of possible paths. A decision by mid-2025 might be the best-case scenario.
“It’s hard to know the timeline,” Homier admits when I ask.
Regardless of when this gets sorted out, the result of this appeal is sure to impact renewable energy development in Michigan, and potentially throughout the Midwest, where some argue too much prime farmland is being compromised for utility-scale renewable energy projects.
Despite prevalent notions of the opposite, a study published in the December 2024 issue of the journal Solar Compass surveyed property values surrounding 70 utility-scale solar projects in the Midwest and found they actually had a minor positive effect on property values, increasing them from 0.5% to 2%.
Another recent study indicated the renewable energy industry is having a profoundly positive effect on job growth and Michigan’s economy, a trend also observed by other states following the passage of the Inflation Reduction Act.
