By Chris Bzdok, Troposphere Legal
As noted in a prior post, the State of Michigan has just enacted a suite of clean energy laws intended to transform electric generation in the state over the next 17 years. The goal is for regulated utilities to achieve a portfolio of 100% clean energy resources by 2040.
To achieve these ambitious goals, the package includes critical siting reform for utility-scale solar, wind, and battery storage. Public Act 233 of 2023 vests ultimate land use authority over these facilities in the Michigan Public Service Commission, or MPSC. PA 233 provides that going forward, the MPSC will issue land use approvals for utility-scale renewables, and the bills dictate specific requirements for those decisions. Local units of government – townships, counties, cities, and villages – can retain their approval authority if their zoning ordinances are compatible with the state standards. Other state and federal permitting requirements remain in place.
The new siting law applies to:
- Solar facilities with a nameplate capacity of at least 50 megawatts (MW).
- Wind facilities with a nameplate capacity of at least 100 MW.
- Battery storage facilities with a nameplate capacity of 50 MW and a discharge capability of at least 200 MWh.
PA 233 allows the developer of one of these facilities to obtain a certificate from the MPSC authorizing its construction. If the local unit of government has a compatible ordinance – one that is not stricter than the state requirements – the renewable energy developer will apply to the local unit instead. A moratorium is not a compatible ordinance.
The new law preempts any local policy, practice, regulation, rule, or other ordinance that is more restrictive than the requirements in an MPSC certificate. If the local unit denies an application under its compatible ordinance, or does not approve it within 120 days, or amends its ordinance during the process, the developer may apply to the MPSC instead.
To start the process for MPSC approval, the renewable energy developer must offer to meet with the chief elected official in the local unit of government. The purpose of the meeting is to begin a process to determine whether the local unit has a compatible ordinance. The developer must also hold a public meeting in the local unit of government, with notice requirements prescribed by the bills.
If the developer proceeds with the MPSC, the process starts with an application. The bills contain a detailed list of what must be included in the application. Highlights of key items include:
- Site plan.
- Description of anticipated effects on the environment, natural resources, and solid waste disposal capacity, which may include records of consultation with state, tribal, and federal agencies.
- Planned construction dates.
- Description of expected public benefits.
- Expected direct environmental and natural resources impacts and mitigation measures.
- Effects on public health and safety.
- A statement and evidence that the facility will not commence commercial operation until it complies with applicable state and federal environmental laws.
- A summary of the community outreach and education efforts.
- Interconnection queue information.
- For greenfield sites, and analysis of feasible alternative developed locations.
- Fire and emergency response plan.
- Decommissioning plan.
The MPSC will hold a formal administrative contested case on each application. The affected local unit of government and property owners who are participating in the project or adjacent to it have a right to intervene in the case. The applicant must make a 1-time grant of $75,000 to each affected local unit of government to participate in the case, up to $150,000 maximum. The applicant must also cover the costs of any consultants hired by the MPSC to assist in evaluating the issues raised in the application. The MPSC must make a decision within one year.
The Commission is required to consider a series of standards in determining whether to approve a project and what conditions to place on it. Key items include:
- Feasible alternative developed locations.
- Impact on local land use.
- Vegetation cover and pollinator standards.
- Community improvements.
- Good-faith effort to provide for proper care of the site.
- Public benefits such as tax revenues, payments to property owners, community benefits agreements, local job creation, and any contributions to meeting identified energy, capacity, reliability, or resource adequacy needs of this state.
- Compliance with the Michigan Environmental Protection Act.
- The applicant has considered and addressed environmental impacts.
- Compliance with federal apprenticeship requirements, state prevailing wage requirements, and the use of collective bargaining where permitted.
- That the facility will not unreasonably diminish farmland.
- Setback requirements, including 300 feet from dwellings and 50 feet from non-participating property lines for solar and battery storage; and 2.1 times maximum tip height from dwellings and 1.1 times maximum tip height from non-participating property lines for wind.
- Noise and dark sky requirements.
Applicants must also enter into a host community agreement with the affected local unit of government which includes a payment of $2,000 per MW of the project’s nameplate capacity for police, fire, public safety, or other infrastructure, or projects agreed on by the parties. If the affected local unit refuses to enter into a host community agreement after good faith negotiations, the applicant may enter into a community benefits agreement with one or more community-based organizations that includes the same payment formula.