The Michigan Court of Appeals this week issued a published opinion in In re Implementing Provisions of Public Act 233 of 2023, an appeal filed by dozens of local governments challenging certain provisions of an order issued by the Michigan Public Service Commission (MPSC) concerning renewable energy legislation and local regulation. MTA Legal Counsel filed a brief in support of townships on behalf of the Association. The court affirmed some parts of the MPSC’s order and struck down other parts. PA 233 of 2023 remains in effect.
A summary of key provisions of the court’s holdings include:
- Compatible renewable energy ordinance (CREO): The court held that the MPSC correctly interpreted the statute to limit a CREO to only those provisions contained in Section 226(8). A CREO may not contain requirements in categories beyond those set forth in 226(8).
- Affected local unit (ALU):The court held that the MPSC incorrectly interpreted the statute to limit an “affected local unit” to only those municipalities with zoning jurisdiction. Instead, an ALU includes all local units of government where a proposed energy facility will be located, regardless of whether the local unit has zoning jurisdiction.
- Hybrid facilities:The courts held that the MPSC correctly interpreted PA 233 to allow for “hybrid” facilities, meaning that the total megawatt (MW) value of multiple renewable technologies can be combined to determine whether the MPSC can assume jurisdiction over a project. For example, a wind project could include solar components, and the MW values of both would be used to calculate the threshold for MPSC jurisdiction.
- Meeting timelines: The court held that the MPSC incorrectly interpreted timing requirements for a meeting within the affected local unit. PA 233 requires that at least 60 days before the mandatory public meeting in a local unit, a renewable developer must offer to meet with the chief elected official of the ALU. Within 30 days of that meeting, the chief elected official must notify the developer whether the local unit has a CREO and is therefore required to file for siting approval with each ALU. The MPSC’s order slightly altered this to say that the chief official must notify within 30 days of the offer to meet, but the statute says within 30 days of the meeting itself.
- Administrative Procedures Act: The court held that the MPSC’s order was not subject to the Administrative Procedures Act because it was merely an interpretive statement and/or establishing application filing requirements, both of which it has the authority to do without engaging in formal rulemaking.