Wes Muller/States Newsroom
Almost a year after Gov. Gretchen Whitmer put her signature on a set of laws intended to streamline the permitting process for large-scale clean energy projects, nearly 80 Michigan counties and townships are challenging a state regulator’s effort to implement the law, arguing it is both unlawful and unreasonable.
Set to take effect on Nov. 29, the law places the permitting for renewable energy projects — including solar energy developments with a capacity of 50 megawatts or more; wind facilities with 100 megawatts or more; and energy storage facilities with a capacity of 50 megawatts or more and a discharge capacity of 200 megawatts or greater — under the control of the Michigan Public Service Commission (MPSC), which regulates energy companies in the state.
As it moved through the Legislature, House Bill 5120 — now Public Act 233 of 2023 — drew criticism from Republicans and local government groups who argued the bill took the permitting process away from local governments, eliminating local control over large scale energy projects.
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While the law requires energy companies to work with localities whose permitting process matches the states, energy utilities can submit a permitting application to the MPSC if the impacted community fails to approve or deny an application in a timely manner, if the local zoning process is stricter than the standards outlined in the bill, or if a project meets the standards outlined in the bill, but the application is denied.
In a claim filed with the Michigan Court of Appeals, 72 townships and seven Michigan counties — Clinton, Dickinson, Ionia, Sanilac, Schoolcraft, Shiawassee and Tuscola — argue that an Oct. 10 order from the MPSC implementing the provisions of Public Act 233 violated the Administrative Procedures Act, which dictates the rulemaking process for state agencies.
The claim also argues the order “unlawfully and unreasonably redefines key terms and concepts and creates processes and procedures that violate the Legislature’s express and unambiguous intent.”
MPSC spokesperson Matt Helms said the commission was unable to comment on the matter.
Under the Administrative Procedures Act, the MPSC is required to employ formal rulemaking procedures when establishing policies that “do not merely interpret or explain the statute or rules from which the agency derives its authority,” but set the standard in implementing the program, the localities noted in the suit.
While there is an exception to this rule for determinations, decisions and orders emerging from a contested case, the appeal notes the order implementing the new zoning rules did not emerge from a contested case.
“The Order is simply a rule by another name that did not go through the rulemaking process as required by the [Administrative Procedures Act],” it reads.
Additionally, the appeal argues the addition of further specifications in its definition of a “compatible renewable energy ordinance,” (CREO) violated the Legislature’s intent and was outside of the commission’s authority, claiming the commission’s definition blocked local units from imposing “additional reasonable regulations on energy facilities.”
“The [MPSC’s] redefining of ‘CREO’ is unreasonable, as it entirely eliminates any local input in the regulation of energy facilities,” the appeal reads.
It also claims that the commission acted outside of its authority in redefining “affected local unit” to include only local units or government that exercise zoning jurisdiction, arguing this definition is unreasonable as it “prohibits unzoned communities from adopting and enforcing CREOs by police power.”
The appeal also takes issue with the commission’s definition of hybrid facilities. While the term does not appear in the law, the order would expand the commission’s jurisdiction to “meet the statutory thresholds when multiple technologies are combined for siting” in a hybrid facility. The localities argue this expansion of the MPSC’s jurisdiction falls outside the intent of the Legislature and is not authorized by law.
In its conclusion, the localities have requested the court vacate the MPSC’s order, permanently block the commission from enforcing it in addition to barring the commission from enforcing the order as it awaits the outcome of the appeals. It also asked for any other relief the court finds just and equitable.
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