This story was written by Beth LeBlanc. It was originally published by the Tribune News Service here: https://delivery.tribuneconten...
LANSING, Mich. — Nearly 80 Michigan municipalities have challenged the legality of the state’s processing of permitting requests for large-scale solar and wind energy facilities — a controversial policy passed by Michigan Democratic lawmakers last year that diminishes local control.
The legal appeal, filed Nov. 8 in the Michigan Court of Appeals, argues the Michigan Public Service Commission exceeded the powers granted it by the Legislature when it adopted an order Oct. 10 that governs the permitting process for solar arrays and wind turbine farms.
The Oct. 10 order did not follow the state rulemaking process and unlawfully redefined “key terms and concepts” that “violate the Legislature’s express and unambiguous intent,” the appeal said.
The Democratic-led Michigan Legislature last year passed legislation that removed local control over large-scale wind and solar projects and shifted decision making to the state via the Michigan Public Service Commission. The legislation was meant to sidestep long-debated local ordinances that, in some cases, had barred large scale renewable energy farms and made it difficult for utilities to meet state-imposed renewable energy goals.
The appeal, filed by 72 Michigan townships and seven counties, seeks a court order voiding the MPSC's Oct. 10 order and stopping the public service commission from enforcing the new set of rules after the law takes effect Nov. 29.
The Michigan counties that joined the legal fight include Clinton, Dickinson, Ionia, Sanilac, Schoolcraft, Shiawassee and Tuscola.
The Michigan Public Service Commission, through a spokesman, said it could not comment on the appeal.
In the law passed last year, the Legislature gave the MPSC — the state's regulator of utility and telecommunication companies — authority over creating application requirements, deciding the format and content of the notice for public meetings, protecting confidentiality of some information and to grant or deny applications.
In order to carry out those responsibilities, the appeal argues, the MPSC was required to follow the Administrative Procedures Act because it was not merely interpreting or explaining the statue but instead establishing “the substantive standards implementing the program.”
The MPSC is able to side setup the rulemaking process when it is handling a contested case, the appeal acknowledged. But the commission’s consideration of the rules implementing the state law was not contested.
“There are no named parties and there was no opportunity for an evidentiary hearing,” the filing said. “The order is simply a rule by another name that did not go through the rulemaking process.”
The appeal also alleges the commission redefined certain phrases in the law including a CREO or “compatible renewable energy ordinance,” an affected local unit and a hybrid facility.
In the law, a community with a “compatible renewable energy ordinance” that is no more restrictive than state standards is able to keep local jurisdiction over the permitting process. But the appeal argues the commission redefined CREO to add that such an ordinance can only contain the exact requirements in state law related to setback, fencing, height and sound, “and nothing else.”
Additionally, the law refers to an “affected local unit” as a local government unit where a proposed energy facility will be located, including a county, township, city or village. But the commission redefined it, according to the appeal, to “include only those local units of government that exercise zoning jurisdiction.”
The phrase “hybrid facility” is not contained, defined or addressed in the law, but the commission includes mention of it as a site where “multiple technologies are combined for siting.”
“This expansion of the PSC’s jurisdiction violates the Legislature’s intent and is not authorized by law,” the suit said.
