Michigan’s Public Act 235, signed into law in November 2023, is getting pushback from U.P. communities. Last year, Gov. Gretchen Whitmer signed multiple renewable energy laws that included barriers to local control of zoning for renewable energy projects.

Act 235, which preempts existing local siting authority, instead, setting statewide siting standards and grant siting authority for utility-scale renewable energy facilities, to the Michigan Public Service Commission (MPSC), took effect on November 29.

On Nov. 8, 75 Michigan townships filed a claim of appeal in the Michigan Court of Appeals challenging the Michigan Public Service Commission’s Oct. 10 order implementing Public Act 233 of 2023. 

The townships, says Potomac Law Group, 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

misinterprets certain key provisions of Public Act 233.

The 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 to the townships, many Upper Peninsula residents have voiced opposition to the local authority preemption included in the act. Included in a 2024 Upper Peninsula Energy Report by the MPSC, were an invitation for public comments.

“I am very distressed that Governor Whitmer would remove the local voice by allowing industrial wind turbines and solar arrays to be built without local consent,”  Anne Childs wrote to the Michigan Public Service Commission on August 5. “This is not government by the people. Michigan’s Upper Peninsula is a natural treasure which should be protected for future generations.” These conflicts involving large-scale renewable energy projects are not new to Michigan.

In August 2021, the Stanton Township Board conducted a survey which showed that 83% of 384 respondents opposed wind turbine projects. The survey was in response to  an attempt by Circle Power and its Scotia Wind Project partner to build wind turbines in both Stanton and Adams townships.

Residents in both townships, who had generally opposed township-wide zoning, turned to the idea as a way to place more constraints on potential projects through zoning ordinances. Adams Township re-activated its planning commission, which had been non-functioning.

In Keweenaw County, Planning Commission Chairman John Parsons addressed the County Board on the issue of MSPC’s Compatible Renewable Energy Ordinance (CREO) options at the regular October meeting. The options, for placement of large-scale alternative energy facilities, are in line with the ordinance restrictions of Act 235.

Parsons said there are three options for the County to consider:

1) Do nothing and the State would take care of any large-scale alternative energy facilities that could take place in Keweenaw County;

2) Develop it own county ordinance, or;

3) Pass a compatible renewable energy ordinance that MAC supports that can be amended locally if needed.

Parsons said the Planning Commission recommends going with option 3, but this would require a public hearing. During discussion among Board member, Board Vice Chair Del Rajala rejected Option 1 outright, saying the Board will not agree to just hand local power to the state.

In a letter to the MPSC dated Aug. 6, Upper Peninsula resident Laura Skumellos, wrote that the Upper Peninsula is already at their percentage for green, so these endeavors need to go back to southern Lower Michigan where they are behind in their quotas for green energy.

In the appeal to the Michigan Court of Appeals, says Potomac Law Group, that among the claims listed by the 75 townships,  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.  

Also, 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.  

If the townships are successful in even part of their appeal, Potomic Law says, 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.