By Nick Smith
Gongwer News Service
A coalition of 75 townships filed an appeal with the Court of Appeals earlier this month challenging a Public Service Commission order implementing a 2023 law moving siting of renewable energy projects to the commission.
Filed on November 8, the townships allege in the appeal that there are procedural and substantive defects in the commission’s October 10 order for implementation of PA 233 of 2023.
The townships also contend that the order was adopted in violation of the Administrative Procedures Act and that the order misinterprets key provisions of PA 233.
In the appeal, the townships also ask for the Court of Appeals to enjoin enforcement of the PSC order as the appeal is considered. The townships asked for the court to vacate the October 10 order and permanently enjoin the commission from enforcing the order.
The appeal is in response to the PSC’s October 10 order, which set out an application process for utilities and independent power providers to stie renewable energy projects under the state’s updated renewable energy standard passed by the Legislature in 2023.
“The Order attempts to vastly expand the PSC’s limited and enumerated jurisdiction in PA 233 and is both unlawful and unreasonable under MCL 462.26(8),” the appeal states.
The townships also allege the order unlawfully “redefines key terms and concepts and creates processes and procedures that violate the Legislature’s express and unambiguous intent.”
Under PA 233, specific powers were granted to the commission regarding the siting of large wind and solar energy projects as well as energy storage projects. The townships state that to promulgate rules pursuant to these powers, the PSC must follow the Administrative Procedures Act.
Although there is an exception under the Administrative Procedures Act for determinations, decisions or orders in a contested case, the townships stated the October 10 order did not stem from a contested case.
“Here, there are no named parties and there was no opportunity for an evidentiary hearing,” the appeal states. “The Order is simply a rule by another name that did not go through the rulemaking process. Because it is a rule that was not promulgated under the APA, was not entered in a contested case, and adjudicates matters outside of the PSC’s limited jurisdiction granted to it in PA 233, the Order is not authorized by law.”
One of the definitions the townships questioned was for compatible renewable energy ordinance, or CREO.
Within the October 10 order, a narrow definition of compatible renewable energy ordinances was adopted that will limit the requirements that are no more restrictive than the provisions included in part of the PA 233 of 2023.
The order stated that a compatible renewable energy ordinance can only contain requirements for setbacks, fencing, height, sound and other applicable conditions outlined in PA 233 and cannot include more restrictive requirements.
This definition of CREO, the appeal states, violates the Legislature’s intent.
“The PSC’s redefining of “CREO” is unreasonable, as it entirely eliminates any local input in the regulation of energy facilities,” the appeal states.
A definition of affected local unit of government was restricted in the PSC order to include only local governments that exercise zoning jurisdiction.
Townships in the appeal stated the PSC also revised this definition and made it narrow.
“The PSC’s redefining of “affected local” is unreasonable because it prohibits un-zoned communities from adopting and enforcing CREOs by police power,” the appeal states.
Further, the appeal questions the definition of “hybrid facility,” a definition that does not appear in PA 233, adding this too was a violation of legislative intent.
A spokesperson for the PSC declined to comment on the appeal.
Gongwer News Service
A coalition of 75 townships filed an appeal with the Court of Appeals earlier this month challenging a Public Service Commission order implementing a 2023 law moving siting of renewable energy projects to the commission.
Filed on November 8, the townships allege in the appeal that there are procedural and substantive defects in the commission’s October 10 order for implementation of PA 233 of 2023.
The townships also contend that the order was adopted in violation of the Administrative Procedures Act and that the order misinterprets key provisions of PA 233.
In the appeal, the townships also ask for the Court of Appeals to enjoin enforcement of the PSC order as the appeal is considered. The townships asked for the court to vacate the October 10 order and permanently enjoin the commission from enforcing the order.
The appeal is in response to the PSC’s October 10 order, which set out an application process for utilities and independent power providers to stie renewable energy projects under the state’s updated renewable energy standard passed by the Legislature in 2023.
“The Order attempts to vastly expand the PSC’s limited and enumerated jurisdiction in PA 233 and is both unlawful and unreasonable under MCL 462.26(8),” the appeal states.
The townships also allege the order unlawfully “redefines key terms and concepts and creates processes and procedures that violate the Legislature’s express and unambiguous intent.”
Under PA 233, specific powers were granted to the commission regarding the siting of large wind and solar energy projects as well as energy storage projects. The townships state that to promulgate rules pursuant to these powers, the PSC must follow the Administrative Procedures Act.
Although there is an exception under the Administrative Procedures Act for determinations, decisions or orders in a contested case, the townships stated the October 10 order did not stem from a contested case.
“Here, there are no named parties and there was no opportunity for an evidentiary hearing,” the appeal states. “The Order is simply a rule by another name that did not go through the rulemaking process. Because it is a rule that was not promulgated under the APA, was not entered in a contested case, and adjudicates matters outside of the PSC’s limited jurisdiction granted to it in PA 233, the Order is not authorized by law.”
One of the definitions the townships questioned was for compatible renewable energy ordinance, or CREO.
Within the October 10 order, a narrow definition of compatible renewable energy ordinances was adopted that will limit the requirements that are no more restrictive than the provisions included in part of the PA 233 of 2023.
The order stated that a compatible renewable energy ordinance can only contain requirements for setbacks, fencing, height, sound and other applicable conditions outlined in PA 233 and cannot include more restrictive requirements.
This definition of CREO, the appeal states, violates the Legislature’s intent.
“The PSC’s redefining of “CREO” is unreasonable, as it entirely eliminates any local input in the regulation of energy facilities,” the appeal states.
A definition of affected local unit of government was restricted in the PSC order to include only local governments that exercise zoning jurisdiction.
Townships in the appeal stated the PSC also revised this definition and made it narrow.
“The PSC’s redefining of “affected local” is unreasonable because it prohibits un-zoned communities from adopting and enforcing CREOs by police power,” the appeal states.
Further, the appeal questions the definition of “hybrid facility,” a definition that does not appear in PA 233, adding this too was a violation of legislative intent.
A spokesperson for the PSC declined to comment on the appeal.
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