Legislature Introduces Bills to Preempt Local Authority to Regulate Utility-Scale Wind and Solar Facilities

Legislation has been introduced to restrict local authority to regulate the location and permitting of utility scale wind and solar facilities throughout Michigan. House Bill 5120, HB 5121, HB 5122 and HB 5123, introduced on October 10, 2023, would create a set of standards for renewable energy systems powered by solar and wind energy with a rated nameplate capacity of 100 MW or more, and a slightly different set of standards for a solar facility with a rated nameplate capacity between 50 and 100 MW and energy storage facilities. In addition, the bills move the permitting and siting process for such systems from the local government level to the State level, and specifically the Michigan Public Service Commission (“MPSC”). If passed and signed into law, the bills will preempt existing local utility-scale solar and wind ordinances and prohibit local referenda on this issue.

HB 5120 and HB 5122 amend the Clean and Renewable Energy and Energy Waste Reduction Act to implement a uniform certification scheme by which utility-scale renewable energy facilities and independent power producers can apply for a certificate from the MPSC to construct and operate the renewable energy facility described in the application for a certificate. HB 5121 and HB 5123 would exempt renewable projects from local zoning ordinances, while HB 5120 and 5122 would preempt local zoning ordinances and regulations that would prohibit or impose stricter requirements on the facility described in the certificate. While the legislation requires notice and a hearing in the local unit where a new renewable energy facility is going to be located, Section 231 of the HB 5120 provides that a local ordinance cannot prohibit or regulate testing activities undertaken by an electric provider or independent power producer for purposes of determining the suitability for a site for placement of an energy facility, nor can a local zoning ordinance limit or impair the construction, operation, or maintenance of a facility which holds a certificate from the State.

Like similar legislation, the bills, as introduced, require the MPSC to issue a certificate to an electric provider if the applicant meets the enumerated requirements in the statute. These include siting requirements. The maximum setback distance required for solar energy facilities, for example, is 150’ from occupied buildings/dwellings, and 50’ from the edge of a public road right-of-way. There is no cap on the amount of property that could be utilized in the local governmental unit for utility-scale renewable energy production.

Some other provisions in the proposed legislation of particular importance to local governments are as follows:

• Limited statutory requirements for information that must be included in the site plans for utility-scale wind and solar facilities, leaving the detailed requirements up to the rulemaking authority of the MPSC;
• No requirement for a local host agreement or bonding to cover the costs that may be incurred by the host community such as increased infrastructure or public safety costs;
• No ability for local approval of fire protection or emergency response plans;
• No provisions ensuring inspection, compliance or enforcement with site plans or the MPSC Certificate and allowing “minor” changes to the site plan without any approval;
• No requirement or analysis of compatibility with any existing local master plan; and
• Limited decommissioning plan requirements which allow for only a fraction of the financial assurance to be in place during the initial years of the project/operation.

While missing from the bills as introduced, many of these items may be addressed by the MPSC in its rulemaking.

The newly introduced legislation has been referred to the House Energy Communications and Technology Committee. A number of local government and agriculture industry advocacy groups, including the Michigan Township Association and the Michigan Farm Bureau are actively seeking changes to benefit their constituencies. However, reports indicate the bills, and identical companion bills introduced in the Senate are being fast tracked by their proponents, including the Governor’s office.

Mika Meyers understands that utility-scale renewable energy siting and permitting is often a contentious topic in local communities. We will continue to monitor the pending legislation as it works its way through Lansing and provide updates to our clients as they become available. In the meantime, if you have questions, please contact a lawyer in our firm’s Local Government Law Practice Group.