Governor Signs Legislation Which Preempts Local Authority to Regulate Utility-Scale Wind and Solar Facilities

On November 28, 2023 Governor Gretchen Whitmer signed legislation to amend the Clean and Renewable Energy and Energy Waste Reduction Act.   The new law,  Public Act 233 of 2023, (the “Act”) restricts local authority to regulate the location and permitting of utility scale wind and solar facilities in Michigan.

Under the Act, an electric provider or independent power producer may apply for a certificate from the Michigan Public Service Commission (“MPSC”) to construct and operate a utility-scale renewable energy facility anywhere in the State. The MPSC is required to issue a certificate if the applicant meets a certain set of enumerated requirements.   One such requirement is that the applicant must hold a public meeting in each affected local unit.* At least 60 days before such a public meeting, the electric provider must also offer in writing to meet with the chief elected official of each local unit.  A local government may enact a “compatible renewable energy ordinance” and notify the electric provider or independent power producer that it has such an ordinance.  If a “compatible ordinance” is in place,  the applicant is required to obtain local approval as provided in the ordinance.

The Act defines “compatible renewable energy ordinance” as an ordinance whose requirements are not more restrictive than the requirements in Section 226(8) of the Act.**  Thus, local units are prohibited from adopting standards such as set-backs or maximum acreage provisions if they are more restrictive than the standards established in the Act.  Moreover, if a local unit denies an application for a renewable energy project, the applicant can ask the MPSC to overrule the denial.

Significantly, if the MPSC overrules the local unit’s denial and approves a certificate for the applicant, the local government will no longer be considered to have a compatible renewable energy ordinance, except in limited circumstances. Therefore, not only would the local government’s denial be overruled, but future electric providers would not be required to go through the local approval process and could seek approval directly from the MPSC.

In sum,  the Act preempts any existing solar and wind ordinances that regulate utility-scale projects more stringently than the Act.  It also incentivizes local governments to amend or adopt solar or wind ordinances that mirror the requirements of the Act so that the local governments at least have an opportunity to confirm for themselves that a solar or wind energy facility complies with the Act.  Ultimately, however, the MPSC has preempted local authority to determine the siting of utility-scale solar or wind facilities.

The Act does not take effect until one year after the Governor signed it, or November 28, 2024.  This means that existing solar and/or wind ordinances remain in effect for the next year and local units of government have time to amend or enact a “compatible renewable energy ordinance” in compliance with Act.

If you have any questions about the Act or would like assistance amending an existing solar or wind ordinance or enacting a new compatible ordinance, please contact a lawyer in our firm’s Local Government Law Practice Group.

*If the electric provider or IPP holds a public meeting in a township, it is considered to have held the public hearing in each village within the township.

**A municipality with a moratorium on solar or wind systems is deemed to not have a compatible renewable energy ordinance.