Consistent with rumors circulating in recent weeks, seventy-five Michigan townships filed a claim of appeal on Friday, November 8, in the Michigan Court of Appeals challenging the Michigan Public Service Commission’s October 10, 2024 order implementing Public Act 233 of 2023. Public Act 233 transfers jurisdiction for the siting of certain renewable energy and energy storage projects from local units of government to the Commission. The townships allege both procedural and substantive defects in the Commission’s order, claiming it was adopted in violation of the Michigan Administrative Procedures Act and that it mis-interprets certain key provisions of Public Act 233. They also are asking the court to enjoin enforcement of the Commission’s Order while this litigation is pending.
The Claims
Specifically, the townships claim that the MPSC’s Order is effectively a “rule” promulgated in violation of Michigan’s Administrative Procedures Act. This claim, if upheld, would cause the entire Order to be overturned and result in the MPSC having to go through what is likely a multi-year process in order to issue rules that would enable it to begin implementing its siting authority. In addition, the townships make three more targeted attacks.
First, that the Commission’s definition of a Compatible Renewable Energy Ordinance, or CREO, violates the intent of the Legislature and is not authorized by law. If successful, this attack would open the door to townships effectively barring renewable development by adding conditions not covered in PA 233 to their local ordinances, knowing that such projects cannot meet those requirements, then denying approvals on the basis of a failure to meet those additional requirements.
Second, the townships allege that the Commission’s definition of “Affected Local Unit”, which limits the applicability of the term to those local units of government with zoning authority, is unreasonable and that the Commission acted outside of its authority in defining the term. If successful, this challenge would enable local jurisdictions without any zoning authority to effectively engage in zoning via their police-power ordinances and would dramatically increase the complexity and cost to project developers of obtaining any approval.
Third, the townships allege that when the Commission created a definition of a “Hybrid Facility” as a project that combined two or more of wind, solar, and storage, and set standards for when such facilities might seek siting approval from the Commission, it was effectively expanding its jurisdiction in a way that violated the Legislature’s intent and was unauthorized by law. This challenge seeks to prevent the Commission from reviewing projects that combine technologies, which are often the most technically complex but which offer unique benefits and challenges, and so require expert review.
Finally, the townships are seeking to enjoin enforcement of the Order, which would stall any progress on siting contested renewable energy projects during this litigation and perhaps any appeals from this case.
The Effects
If the townships are successful in even part of their appeal, they will seriously undermine the purpose and function of the state’s siting reform, crippling the state’s efforts to meet the ambitious clean energy goals set in the 2023 legislation.
How to Get Involved
Interested parties who are affected by the Commission’s Order have an opportunity to join this litigation to help defend the Commission’s Order and the state siting process. If you have any questions regarding proceedings to this point, the townships’ appeal, or how your company can be involved directly or indirectly in these proceedings, please reach out to PLG’s Michigan energy team, using the contact info below.
