LANSING — The Michigan State House took actions late last month to reverse controversial rules that give the Michigan Public Service Commission the authority to regulate permitting for projects that produce renewable energy through wind or solar generation — but changing the rules through legislation may be an up hill battle.

House Bills 4027 and 4028, which are tie barred, take aim at Public Act 233 of 2023, which provides siting authority to the Commission for utility-scale wind, solar, and energy storage facilities that meet a list of requirements outlined in the act. The requirements include things like set backs from homes and buildings on properties that are not participating in the project, the maximum height of solar panels, decibel limits, and restrictions on light flicker for wind turbines.

Governor Gretchen Whitmer first proposed taking control of solar development from local municipalities and giving it to the Michigan Public Service Commission in her “What’s Next” address on Aug. 20, 2023, just three days after her visit to the Upper Peninsula State Fair in Delta County where disputes over solar and wind development have run hot.

“It should be easier to create jobs and build wind and solar projects. Let’s permit clean energy projects through the MPSC — just like all other sources of energy,” Whitmer said in her August 2023 address.

PA 233 gives a local unit of government, like a city or a township, the ability to approve or deny a proposal within a 120-day period, assuming the municipality has adopted a compatible renewable energy ordinance. Commonly known as a “CREO,” these ordinances can be less restrictive than the rules laid out in PA 233 but not more restrictive.

If a proposal that meets the requirements laid out in PA233 is rejected or the municipality does not have a CREO, an electric provider or independent power producer could submit an application the MPSC directly to get the permits necessary to begin construction.

The law has been polarizing. Proponents say giving the power to the MPSC protects the rights of property owners to develop their land even in communities hostile towards green energy. They also argue that the law still gives communities the ability to adopt less restrictive rules to support development and that many of the arguments against solar development are based on bad science.

Critics, on the other hand, have argued that even with the 120 review period the law amounts to the state seizing local control over the permitting process because no community can write their own rules that are more strict than what is already prescribed by law. Not all critics take issue with wind or solar developments per se — focusing instead on what they see as a power grab from the state — but many also oppose green energy for a variety of political or environmental reasons.

“As the closest unit of government to the people, our local officials need zoning authority to plan their communities,” State Rep. Dave Prestin said in a press release about his vote in favor of the bills approved April 30. “That authority is undermined when the state can just drop a massive solar field or hundreds of windmills wherever they please. Current law doesn’t give local governments or even the MPSC any latitude to consider what community members want. These bills return zoning authority back to the communities where it rightfully belongs.”

Both house bills passed along party lines, with all 58 Republicans in the majority voting in favor of the bills and 48 Democrats opposing. Four representatives did not vote.

The bills have been sent to the state senate and forwarded to the Committee on Government Operations, but odds of their approval in the Democrat-majority senate are poor.

Public Act 233 was signature legislation for Whitmer and was part of a push to meet green energy goals set by the Biden Administration. The legislation was signed by Whitmer roughly two months after she initially pushed for it in her late-August 2023 address and swift action by Democrats. At least a portion of those Democrats are still seated in the senate.

That has led to communities who oppose the law seeking other avenues to dismantle the new rules, including a class action lawsuit against the Michigan Public Service Commission for allegedly interpreting the statute when it developed an application process for energy and energy storage siting and issued an order on Oct. 10, 2024 summarizing its findings from a series of public input meetings on the impact of Public Act 233. That order repeatedly touched on CREOs.

“They simply do not have the power to say that a compatible renewable energy ordinance is anything other than what PA 233 says that it is. Even if they did have that authority, they grossly abused it,” said Attorney Laura Genovich, of Foster Swift, the firm behind the suit — who also represents Escanaba Township — during a meeting last fall. “They grossly abused it here in saying that basically a township has absolutely no zoning authority except to mirror what is in PA 233 and would have no control over where it’s located.”

Despite being a major point of discussion during the meeting when Escanaba Township voted to join the suit and Genovich saying the order “… purports to define compatible renewable energy ordinance in a way that goes beyond what the statute PA 233 says,” the MPSC’s order itself includes 11 statements that explicitly say CREO must be no more restrictive than the requirements outlined in PA 233. Of those references, ten are quoted verbatim from the act itself.

The class action suit is continuing to make its way through the Michigan Court of Appeals. A total of 76 municipalities signed on to the suit as appellants to challenge the MPSC, and a handful of pro-green energy groups signed on to the case in support of the MPSC as intervening appellees. Dozens of groups and individuals, representing both sides of the issue, have also submitted amicus briefs weighing in on the case without signing on as appellants or appellees.