This coverage is made possible through a partnership with Grist and Interlochen Public Radio in Northern Michigan.
A lawsuit challenges how the state of Michigan plans to approve large renewable energy projects, just weeks before a new law is set to take effect.
About 80 townships and provinces are sue the Public Service Commissionthe state’s energy regulators, on how it plans to grant site permits to renewable projects. The suit, filed Nov. 8, could shape how and where solar, wind and battery storage is developed — and it hampers the process for projects to be approved in the meantime.
Last year, Michigan’s Democratic-controlled legislature passed a batch of ambitious climate policies, including changes to the application process for large renewable projects. One of those laws, Public Law 233allows the state to greenlight utility-scale renewables — such as solar arrays of at least 50 megawatts — that in the past might have been be delayed or blocked by local governments. The bill passed on promises that it would help meet clean energy goals and reduce greenhouse gas emissions by providing developers with additional paths forward.
Renewable energy advocates had high hopes that this would be a turning point for Michigan, which has a deep history of local control. In crafting PA 233, lawmakers followed the example of states like Illinois which in recent years has worked to streamline furloughs and limit local governments’ power to limit renewable energy.
“I think there was a great deal of relief on the part of landowners, who had option agreements and contracts to participate in wind and solar projects, but were essentially blocked by local governments from getting rent payments,” says Matthew Eisenson, a senior fellow at the Sabin Center for Climate Change Law at Columbia Law School. Eisenson argued for regulators to clarify Michigan law to ensure projects are protected from local restrictions. According to the Sabin Center, by the end of 2023, at least 22 clean energy projects have been halted throughout the state by local governments (although some have since moved forward) and at least seven townships placed severe restrictions on industrial solar development in areas zoned for agricultural use.
Critics of the law, meanwhile, claim it turns control away from the people who live in these areas, and the local governments who know what’s best for their communities.
Legal challenges to Michigan’s new climate laws weren’t exactly unexpected; an attempt to repeal the Settlement Act altogether fail earlier this year, because organizers did not collect enough signatures to vote on it. But this latest appeal in Michigan has received national attention, with the climate news website Heatmap News write that this may be “the most important legal challenge for the renewable industry in America”.
The lawsuit challenges the Public Service Commission’s plans to implement the renewables establishment law, not the law itself. And as other states consider whether to allow reform — and whether to keep large renewable projects under local or state control — such lawsuits may be easier than trying to repeal an entire law, Eisenson said: “There are more options. “
This latest legal challenge has been submitted to the Public Service Commission announced how the new project site approval law will work — a process that involved months of public engagement by the commission in an effort to clarify the rules, including what exactly local governments must have on the books to have the first say get about a proposed project.
The lawsuit says the commission’s regulators did not follow the proper rulemaking procedures to issue such requirements, and that they undermine the local control baked into PA 233. a local law that meets specific state guidelines. PA 233 states that renewable project developers only apply locally as long as the government has a compatible ordinance. If that local ordinance is more restrictive than state law, developers can apply directly to the state for approval instead.
This left some big questions.
Sarah Mills, an urban planning professor at the University of Michigan who researches how renewable energy affects rural communities, said while parts of PA 233 are clear — such as the sections on setbacks, fencing, height and sound — others are murky. .
“There are a whole lot of things that are traditionally regulated for renewable energy projects that aren’t mentioned in the law,” she said, such as whether local governments can require trees and bushes or ground cover.
The Public Service Commission asserts that for a local ordinance to be compatible, it cannot include restrictions on things not included in the law. The plaintiffs behind the appeal disagree.
“It’s not the state of the law, and frankly, it’s rewriting the law because it doesn’t say that,” said Michael Homier, an attorney at the firm Foster Swift Collins & Smith, who represents the plaintiffs.
What it comes down to, Homier said, is the scope of the commission’s authority: Although he acknowledges that regulators can still consider applications, the case challenges the commission’s broader interpretation of how the law should work.
A spokesman for the commission said they could not comment.
Under the commission’s order, only the local government zoning a renewable project needs to be considered when granting an approval. But the lawsuit argues that when more than one jurisdiction is affected — such as when a county overlaps with a township — both entities should be included in the decision-making.
Mills points out that this will affect how much money from these projects will flow to local communities. State law says communities where large projects are located will receive $2,000 per megawatt, along with any required legal fees, which the developer will pay.
“If the affected local government unit is not just the zoning jurisdiction, the developer will have to pay $2,000 to the county and the town. So it would be $4,000 per megawatt,” Mills said, in which case “developers would have to pay more money.”
Those represented in the appeal are a minority of local jurisdictions; Michigan has 83 counties and more than 1,200 townships. Many are in the south and around the agricultural area in the east known colloquially as “The Thumb”, although a few are further north.
Watchdog groups that track efforts to oppose renewable energy projects say legal challenges are part of coordinated opposition to such development.
“The lawsuit is an extension of ongoing efforts by anti-renewable energy interests to block clean energy in Michigan, and seeks to open the door to poison pill local rules that effectively ban renewable energy development,” said researcher Jonathan Kim of the Energy and Policy Institute said. in an email.
In Michigan, debates over large-scale clean energy projects have been heated and have had consequences for elected officials. Douglass Township, with a population of just over 2,200, held a recall election in 2022 — part of a golf of unrest in Montcalm County driven by opposition to renewable energy. “So our community was completely behind us working on ordinances that would protect them from industrialized wind and solar energy,” said Cindy Shick, who won the township supervisor race as part of the repeal.
According to Shick, the state’s recent settlement law drastically reduced the local control they had achieved and the commission’s order eroded it even further, which is why the township joined the lawsuit.
Reasons for opposing utility-scale renewable projects vary widely, from concerns about a loss of agricultural land to the effects such developments will have on the environment. Other critics point out that companies too often failure to consult tribal nations and ignore Indigenous rights when pursuing projects.
Still, others who support more development say it’s a boon to communities and people who want to make money by renting their land. Clyde Taylor, 84, is a hay farmer in Isabella Township in central Michigan. The township is among those suing, although Taylor did not investigate the lawsuit.
He is allowing a company to build a solar power system on about two dozen acres of his land. While he has “mixed feelings” about the state’s new settlement law, he generally supports it.
“We have to have laws on the books to make this thing fly,” he said, referring to the adoption of renewable energy. “And they made it fair enough,” with solar projects below 50 megawatts remaining in local control.
Ultimately, the local governments involved in the lawsuit are asking the appeals court to cancel at least part of the commission’s order. The law is expected to come into effect on November 29. If the appeal is successful in stopping the Public Service Commission from implementing the order, it is unclear how PA 233 will work while the case moves through the courts, a process that could take more than a year.
