Illustration by Tom Hickey and Al Hicks, NREL.

Local Communities Challenge Michigan Renewable Energy Siting Law

November 30, 20243 hours ago Steve Hanley 0 Comments

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Local control. State rights. Liberty. Freedom. All those terms have been in tension in America since before the United States came into being, and they remain alive and well in America today. Local communities in Michigan have initiated a legal slugfest with the state government over a new law that is supposed to speed up the process of building new renewable energy installations. Last year, the Michigan legislature passed a bundle of ambitious climate policies, including changes to the application process for large renewable projects. One of those laws, Public Act 233, allows the state to approve utility-scale renewables such as solar arrays of at least 50 megawatts that in the past could have been slowed or blocked by local governments. Supporters of the legislation believed it would help the state meet its clean energy goals and reduce greenhouse gas emissions.

Grist reports that about 80 townships and counties are suing the Public Service Commission, the state’s energy regulating body, over how it plans to grant siting permissions to renewable projects. The suit, filed November 8, 2024, could shape how and where solar, wind, and battery storage projects are developed in Michigan. While that suit is pending, it will gum up the permitting process for projects waiting to be approved. Renewable energy advocates had high hopes that the new siting law would mark a turning point for Michigan, which has a deep history of local control. In crafting PA 233, lawmakers followed the example of states like Illinois that in recent years have worked to streamline permitting and curtail the power of local governments to restrict renewables.

“I think there was a huge amount of relief on the part of landowners, who have had options agreements and contracts to participate in wind and solar projects, but have been blocked from getting lease payments, essentially, by local governments,” Matthew Eisenson, a senior fellow at the Sabin Center for Climate Change Law at Columbia Law School, told Grist. He advocated for a clarification of Michigan law in order to ensure projects were protected from local restrictions. According to the Sabin Center, at the end of 2023, at least 22 clean energy projects had been stalled throughout the state by local governments and at least seven townships had placed severe restrictions on developing industrial solar in areas zoned for agricultural use.

Local Control And Michigan Law

Critics of PA 233 claim it wrests control away from the people who live in these areas and local governments that know what is best for their communities. The lawsuit says the regulations promulgated by the PSC to implement that law did not follow the proper rule-making procedures and undermined the local control provisions that are part of PA 233. In particular, the suit challenges the commission’s definition of a “compatible renewable energy ordinance” — a local law that complies with specific state guidelines. PA 233 stipulates that renewable project developers first apply locally as long as the government has a compatible ordinance. If that local ordinance is more restrictive than state law, developers can instead apply directly to the state for approval.

That left some big questions, says Sarah Mills, a professor of urban planning at the University of Michigan who researches how renewable energy impacts rural communities. She said that while parts of PA 233 are clear, such as the sections on setbacks, fencing, height, and sound, others are murky. “There’s a whole bunch of things that are traditionally regulated for renewable energy projects that are not mentioned in the law,” she said, like whether local governments can require trees and bushes or ground cover.

The Public Service Commission claims that for a local ordinance to be compatible, it can’t include restrictions on things not included in the law. The plaintiffs behind the appeal disagree. “That’s not the state of the law, and frankly, it rewrites the legislation, because it doesn’t say that,” said Michael Homier, an attorney who is representing the plaintiffs. What it comes down to is the scope of the commission’s authority, he said. While he acknowledges regulators can still weigh in on applications, the suit challenges the commission’s broader interpretation of how the law should work. The law includes fees that renewable energy developers have to pay to local jurisdictions, currently set at $2,000 per MW. But opponents contend that if there are two or more jurisdictions involved — such as a town and a county — then each should be entitled to payments, which would double the amount of money developers would have to pay to get their projects built.

Watchdog groups that track efforts to oppose renewable energy projects say legal challenges are part of coordinated opposition to such development. “The lawsuit is an extension of ongoing efforts by anti-renewables interests to thwart clean energy in Michigan, and seeks to open the door to poison pill local rules that effectively prohibit renewables development,” said researcher Jonathan Kim of the Energy and Policy Institute in an email to Grist.

Local Control Can Have Long Coat Tails

If you fly over the 41-mile-long border between Rhode Island and Connecticut, you will see … nothing. No cities or towns and only a few roads between them. It looks more like a demilitarized zone than a part of the United States. There are historical reasons for this and they relate to the issue of local control. Rhode Island was founded by Roger Williams, who believed people should be free to practice any religion they liked, which is why the oldest Jewish synagogue in America is in Newport. Quakers, who were flogged, kept in stocks, or subjected to long sessions in the dunking chair in Massachusetts, were welcome in Providence. In fact, once the Massachusetts Bay Colony ceded control of what it thought was a swampy, bug infested wasteland to Williams, many malcontents in Massachusetts followed Williams’ lead and relocated to what came to be known as Rhode Island and Providence Plantations.

There were so many misfits and cantankerous people in the new colony that it quickly became known as Rogue’s Island. Colonists in Connecticut refused to associate with their neighbors to the east. At a time when each colony issued its own money, Connecticut merchants refused to accept Rhode Island currency. Customs stations were set up at the border to keep goods from Rhode Island out of Connecticut. The enmity between the people in the two colonies meant there was little to no commerce between the two. The echoes of that separation can still be seen 300 years later from the air today.

The Takeaway

There is a huge brouhaha about renewables destroying the rural character of America. People want to see cows, red barns, and silos, not wind turbines, solar panels, and rows of storage batteries. But climate change doesn’t care a flying figleaf about such things. In fact, as more rural areas are being impacted by punishing droughts or torrential flooding every year, the look of those rural communities may be altered permanently, and not for the better. What few opponents to renewables stop to consider is what will happen to their communities if farmers are unable to make a living from the land and move away, leaving their farms to fall into disrepair. Opponents somehow are unable to see beyond the end of next week, possibly because a lot of the negative messaging about renewables is coming from groups supported by fossil fuel interests, who play on people’s emotions rather than relying on facts.

The strategy is to delay, delay, then delay some more. It’s pretty effective, unfortunately, but eventually the climate change chickens will come home to roost, and when they do, it will be too late to save those rural communities from the consequences of their actions. There is some reason to hope, however. Agrivoltaics — a marriage between solar and farming — can put money in the pockets of farmers who are struggling to make a living and can actually make the land more productive in some cases. The good news about agrivoltaics is beginning to spread in the farming community and it may actually be just what the doctor ordered to allow rural communities to thrive despite the challenges presented by a warming planet.