Michigan Townships Association

Renewable Energy Siting and Permitting

Renewable Energy Siting and Permitting

Public Acts 233 and 234 of 2023, which preempt existing local siting authority, set statewide siting standards and grant siting authority for utility-scale renewable energy facilities to the Michigan Public Service Commission (MPSC), will take effect on Nov. 29, 2024.

MTA to file amicus brief in PA 233 lawsuit

MTA’s Legal Defense Fund has approved filing an amicus curiae brief in a lawsuit filed challenging the Michigan Public Service Commission’s order implementing Public Act 233 of 2023, which shifted siting of utility-scale renewable energy facilities. Nearly 80 townships, along with several counties, have jointly filed an appeal to the Michigan Court of Appeals contesting certain aspects of the MPSC order. The appeal is currently pending, and no court orders have been issued. MTA advises you to consult with your township legal counsel to discuss the litigation further.

 

MPSC releases final order on large-scale renewable energy facilities under PA 233

The Michigan Public Service Commission (MPSC) has approved an order for the implementation of Public Act 233 of 2023 for the siting of large-scale renewable energy facilities. The order, released on Oct. 10 (with subsequent corrections), provides final application filing instructions and procedures for projects seeking a certificate from the commission under PA 233, which takes effect Nov. 29, 2024.

MTA continues to review the order and application filing instructions and procedures with our legal counsel. To provide information and answer questions, we hosted a free MTA Q&A with MTA legal counsel for our members on Thursday, Oct. 17. A recording of the Q&A will be made available to our members to watch following Oct. 17. Click here to register to watch the recording for free (MTA-member login required.)

Throughout the Public Act 233 of 2023 implementation process, MTA and our legal counsel participated in each MPSC stakeholder meeting, provided detailed input and feedback on all draft guidance, and shared with the commission background on local land use considerations such as site plan review and decommissioning.

The MPSC order confirms MTA’s interpretation of the law that local ordinances cannot be more restrictive than provisions prescribed in the new statute, and thus cannot be tailored to meet the needs of individual communities. Along with our legal counsel, we will continue to provide guidance to our members as you navigate the upcoming siting requirements for these large-scale renewable energy facilities that impact your communities and residents.

The order also confirms local siting authority is only retained if the impacted community, or communities if a project crosses jurisdictional boundaries, each adopt a compatible renewable energy ordinance with requirements no stricter than those prescribed in PA 233. The MPSC order states that workable ordinances—allowing a developer to choose to work with a local government for siting and requirements that fit best with the community—are outside the commission’s authority under PA 233. Workable ordinances are allowed, but the MPSC clarified they are outside of their authority.

Additional key items outlined in the order that impact townships include:

  • Affected Local Unit (ALU) is “restricted to only those local units of government that exercise zoning jurisdiction”
  • Meeting and notification requirements with chief elected official/ALU, as well as notice of public meetings
  • Authority for project applications when located in multiple jurisdictions
  • Unzoned areas are not considered to be an ALU under PA 233 and are not subject to the “same obligations and benefits as ALUs”
  • Hybrid facilities permitted—meaning “solar facilities, including hybrid or co-located facilities comprised of solar and storage facilities, having a nameplate capacity of 50 megawatts (MW) or more and wind facilities, including hybrid or co-located facilities comprised of wind with solar and/or storage having a nameplate capacity of 100 MW or more”
  • Allocation of one-time grant funds
  • Decommissioning requirements—including what is required to restore soil conditions as well as removal of infrastructure—limited to only above-surface facilities/infrastructure

Additional information regarding the process, comments and filings can be found at MPSC workgroups on renewable energy facility siting and Case: U-21547.

 

MTA sample CREO, PA 233 documents now available

Under PA 233, an applicant must first contact the local government to verify if it has adopted a compatible renewable energy ordinance (CREO). A CREO is an ordinance that provides for the development of utility-scale energy facilities within the local unit of government that is no more restrictive than provisions included in Section 226(8) of PA 233. If the local government has adopted a CREO, the applicant must go through the municipality for approval and bypass the commission. Working with our legal counsel, MTA has available a sample CREO (updated to reflect the October MPSC order), as well as a sample application (updated in October), escrow policy and escrow affidavit. The sample documents are available for MTA members on our “PA 233 Sample and Guidance” webpage (member login is required). The escrow documents are extremely important to help ensure the applicant is paying the full cost of processing their application, rather than the township absorbing the costs.

Note that an applicant may also choose to work with a township that has a “workable ordinance,” rather than going through the MPSC. (There are numerous reasons an applicant may choose to work with a township, such as timing and costs). Sample MTA workable ordinances are also now available on our PA 233 Samples and Guidance webpage.

Throughout the implementation process, MTA, with our legal counsel, has submitted comments on the draft PA 233 implementation guidance released by the MPSC in June. 

Note: This is not intended to be legal advice. Members should consult with their legal counsel before adopting any of these sample documents.

 
Statutory ballot initiative to return local control for large-scale renewables suspended

Citizens for Local Choice (CLC), the organization seeking signatures for a ballot proposal to restore local control over the siting of large-scale utility renewable energy operations, announced that they have suspended the campaign to secure placement on the 2026 ballot. They plan to pursue additional resources for a potential restart next spring.

Reminder: The Michigan Campaign Finance Act limits how a public body can use public funds or property when it comes to campaigning for ballot questions or candidates. For guidance on what townships and township officials may—and may not—do in their official capacity and as individuals to support ballot initiatives, see MTA’s fact sheet,  “Getting the Word Out: Campaign Finance Act Compliance”, as well as our fact sheet on Campaign Materials on Township Property. Find additional resources on MTA’s “Campaign Finance Act Compliance” webpage (login is required to access the webpage).

Inside the law

The legislation applies to all solar projects with a nameplate capacity of 50 megawatts or greater, wind projects with a nameplate capacity of 100 megawatts and energy storage facilities with a nameplate capacity of 50 megawatts or more. This fast-tracked legislation, which was introduced and passed in less than a month, was a priority of the governor’s administration.
 

To require a developer to go through a local unit of government, the local unit must have a “compatible renewable energy ordinance” that complies with statewide standards such as setbacks, decibel levels and height. A renewable energy ordinance is not considered compatible if it is more restrictive than the statewide standards. The local unit would then be limited to a period of 120 days to approve or deny the project with a possible extension of up to 120 days ONLY if mutually agreed upon by the local unit and the developer. If the local unit denies or fails to act on the proposal, the MPSC would then receive the application.

If a local unit does not have a “compatible renewable energy ordinance,” the developer would apply directly to the MPSC which would have 60 days to review the application to determine if it is complete and one year to approve or deny the application. Additionally, while MPSC shall consider the impact on the local land use, including the percentage of land within the local unit of government dedicated to energy generation, the legislation does not limit the overall land that can be utilized in a local unit for said purposes.  A one-time $2,000 per megawatt payment in provided from the energy facility owner to the local unit for public safety and infrastructure purposes; however, both parties (the local unit and the energy facility owner) must agree on how the funds can be spent.  

MTA and its members stridently opposed the legislation, which creates a one-size-fits-all approach for Michigan’s communities. This legislation silenced the voices of local officials and residents over these important local decisions. We believe that the siting and permitting of renewable facilities should remain with the local community where that facility will be located for the next 20 to 50 years.

“These bills represent a continued attack on the ability for Michigan’s residents and their locally elected officials to have the final say on how their communities grow and change. The new laws simply do not create a balanced or equitable approach to our state’s renewable energy needs,” stated Neil Sheridan, MTA Executive Director. “Rather, the legislation unduly forces large, utility-scale renewable energy facilities into our rural areas, while also stripping away local input on where and how much should be located in a community. The new laws prescribe statewide, one-size-fits-all requirements, and negate current renewable energy zoning provisions already carefully and thoughtfully enacted in communities around the state.”
 
Watch for additional information in our Township Insights enewsletter, Township Focus magazine and on MTA’s website.

MTA press release—House-passed renewable energy siting bills do not protect local control

MTA press release—Local officials and residents across Michigan want local decisions over renewable energy facilities in their communities

MTA press release—Poll: Residents believe local governments should have say in renewable energy facilities in their community.

MTA Q&A Renewable Energy Presentation

MTA Renewable Energy Media Statement

MTA statement by MTA Executive Director Neil Sheridan:

“Utility-scale renewable energy siting can be an incredibly contentious topic in communities across the state. But the answer is not to take away local governments and residents’ say about issues and decisions that have very real, lasting and potentially dramatic impacts for their community. Attempts to strip away local authority are becoming more and more common. No one knows a community—and its wants and needs—better than residents and the local officials they elect to represent and serve them. We understand the need, and the desire, for renewable energy. Many townships across the state are already home to renewable energy facilities—by their choice. We will work to ensure that communities and Michiganders keep their voice on these important local decisions.”