Michigan’s New Renewable Energy Siting Law and its Implications on Municipalities

Governor Gretchen Whitmer previously signed House Bill 5120 (now Public Act 233 of 2023) into law in November 2023. The regulations, which specifically affect municipalities and developers, create a new siting path for utility-scale wind, solar, and energy storage facilities with the Michigan Public Service Commission (“MPSC”) and become effective on November 29, 2024. Once effective, it is critical that clean energy developers and municipalities become familiar with this new siting process.

The siting process applies only to utility-scale developments, which means large scale solar, wind, and battery energy storage facilities. Smaller-scale clean energy projects will continue to be sited and developed pursuant to local zoning ordinances.

Developers may seek certification without involving a local municipality in certain circumstances. However, some involvement with government will still be required such as when a municipality:

• does not have a Compatible Renewable Energy Ordinance (“CREO”);
• fails to approve or deny the request in a timely manner;
• denies an application that complies with the requirements; or
• amends its zoning ordinance after providing notice that it has a CREO and the amendment imposes development terms that are more restrictive.

CREO’s typically require setback distances, height restrictions, and noise limitations.

The law also provides the MPSC with review standards, which, if satisfied, require the agency to grant the application. These standards include:

• identifying public benefits of the proposed project to justify its construction;
• complying with the Natural Resources and Environmental Protection Act;
• defining impacts to the environment and natural resources;
• satisfying any conditions in the host community agreement;
• utilizing particular labor programs/standards;
• avoiding diminution of farmland; and
• ensuring that the proposed energy facility does not pose an unreasonable threat to public health or safety.

The MPSC issued an order in February mandating that its staff hold public meetings and then file recommendations for applications procedures, guidance related to CREO’s, and comments on other issues presented by the new MPSC process.

On June 21, 2024, MPSC staff released the draft for Application Instructions and Procedures for renewable energy and energy storage. It provides more clarity regarding the impending MPSC application process and offer key guidance how the certification process will be implemented.

Anyone interested should carefully review the draft Application Instructions and Procedures and monitor MPSC’s website for updates as the effective date for implementation of the new regulation approaches. CMDA attorneys are available to assist municipalities and developers with Public Act 233 of 2023.

John D. Gwyn is an attorney in our Livonia office where he focuses his practice on commercial litigation, real estate law, community association law, and municipal law. He has broad and extensive experience of over 25 years in matters involving commercial and consumer litigation primarily focused on the representation of community associations and financial institutions. Mr. Gwyn currently represents developers, condominium and HOA associations regarding matters involving real estate, contract, and construction issues. He may be reached at (734) 261-2400 or jgwyn@cmda-law.com.