Stage Set in Michigan for November Kickoff of State-Level Renewable Energy and Storage Siting

The Michigan Public Service Commission yesterday issued its final Application Filing Instructions and Procedures that will govern applications filed for a certificate under Public Act 233 of 2023. Public Act 233, part of a broader clean energy bill package passed near the end of 2023, provides a limited grant of siting authority to the Commission for certain utility-scale solar, wind, and energy storage facilities that cannot otherwise attain zoning approvals from local governments in Michigan.

In the Instructions, the Commission resolved some key outstanding questions, including which local governments would be eligible for certain rights and benefits under the law and how restrictive local ordinances could be before developers may seek Commission involvement. In each case, the Commission agreed with commenters urging the Commission to hew closely to the clear language and purpose of Public Act 233 and adopted narrow definitions of both.

These interpretations, together with other clarifications and directions in the Instructions, lay the groundwork for the contested case process that renewable energy developers will need to follow in order to be granted a certificate from the Commission.

Unlike the local zoning process, which requires a relatively straightforward written application (including a site plan) showing project compliance with the local ordinance and which may involve public hearings and planning commission and/or legislative body meetings, the process envisioned by Public Act 233 will be handled in accordance with the Commission’s usual hearing procedures in utility cases. Applications will be required to contain sworn testimony and extensive documentary exhibits, and intervening parties (which will most likely include the local government) will have the opportunity to conduct discovery, to file direct and rebuttal testimony in opposition to the application and to cross-examine developer witnesses.

The Potomac Law Energy Team has unparalleled experience before the Commission as longtime regulatory counsel to renewable energy and storage developers and their trade associations in Michigan. With decades of experience in contested cases and a team that includes a former Commission Chair, the attorneys at Potomac Law have a deep and sophisticated understanding of Michigan’s regulatory processes, particularly before the Commission. Our extensive knowledge of the underlying legal landscape and the current political and regulatory environment uniquely positions us to be vital partners for you in helping to shepherd your project through the new Commission process. We would be happy to talk with you about your project and aid in addressing any of your siting or other legal concerns, including whether to seek a certificate from the Commission under Public Act 233.