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The state’s landmark legislation to overrule local opposition to renewable energy is being challenged by over 70 local jurisdictions.
The most important legal challenge for the renewables industry in America may have just been filed in Michigan.
On Friday afternoon, about 70 towns and a handful of Michigan counties appealed the rule implementing part of a new renewable energy siting law – PA 233 – providing primary permitting authority to the Michigan Public Services Commission and usurping local approval powers in specific cases, Heatmap can first report. The law was part of a comprehensive permitting package passed last year by the state legislature and seen by climate advocates as a potential model for combatting NIMBYs across the country.
The appeal challenges multiple aspects of the law’s implementation, saying it went beyond statute, as well as the rulemaking procedure itself, claiming it failed to follow proper processes. The lawsuit aims to effectively undo the law going into effect, or at least enjoin what opponents say are the most onerous restrictions on municipalities and county governments.
Some of the places involved in the litigation have solar, wind, or battery storage proposed in their backyards. But while it’s certainly the case that some opponents may just want to stop projects from being built, one of the attorneys behind the litigation – Michael Homier at Michigan law firm Foster Swift – told me the case represents how these laws inflame broader tensions between communities and their governments.
“[Renewables have] to be sited appropriately, because each community has unique priorities and circumstances that relate to them,” Homier said. “I think what it says is that local voices matter and when you try and implement policy on a one-size fits all approach with all of these local communities, they don’t like it.”
Local control laws like Michigan’s exist because, well, climate change is an imperative that calls for rapid action. Delays stemming from dissent at the municipal or county level can totally gum up the works, as we’ve shown you time and time again. Michigan’s no stranger to this problem. Opponents of the Michigan law sought to repeal it via ballot initiative before the lawsuit was filed, but that effort failed, and some ballot petition backers have since gotten a campaign finance complaint.
But it’s important to note these laws feel like shots to the heart of small-d democracy, and the notion of locally-controlled land use planning, too. As these policies become a go-to for anxious Democratic politicians trying to get shovels into the ground to bring down carbon emissions, one should hardly expect towns and counties to take it lying down.
Take Maryland, where legislators have sought to pass bills similar to Michigand’s. Despite the state’s ambitious climate goals, the Maryland Association of Counties has vociferously opposed bills to ban counties and towns from setting ordinances that restrict renewable development and let community-scale solar advance without strenuous local review. Or take New Jersey, where transmission cables for offshore wind may produce similar litigation to what’s in Michigan, testing the constitutionality of the state’s local control law.
In Michigan, it’ll take upwards of a year or two for the case to wind its way through court proceedings. Until then, we’ll pour one out for any developer or climate wonk who thought that the state's stab at “permitting reform” was going to help.
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The Trump administration appears to be advancing solar projects through the permitting process now.
After a temporary halt to permitting for solar projects, the Bureau of Land Management told me a few weeks ago that it had lifted the pause, but I had told you I would wait for confirmation to see whether projects could actually move through government permitting. On Friday, the Bureau of Land Management publicly confirmed that federal solar permitting can happen again, formally approving the Leeward Renewable’s Elisabeth solar project in Yuma County, Arizona – what appears to be the first utility-scale solar facility on federal acreage approved by the Trump administration.
The Elisabeth project is located in a remote part of southwestern Arizona in the Agua Caliente Solar Energy Zone, an area designated for solar energy leasing that has existed for more than a decade, and is adjacent to other large solar projects that have been previously approved according to BLM.
On the same day, BLM released a draft environmental review of a separate solar project in Arizona that the agency segregated land for late last year at the same time as Elisabeth: the Avantus’ Pinyon solar-plus-storage project, which is open for public comment through late May. Tucked on page 37 of that draft document was a list of other solar projects in the nearby vicinity on federal lands that have yet to enter the federal permitting process under the National Environmental Policy Act, which BLM dubbed as “reasonably foreseeable” impacts to the cumulative environment.
The fact BLM is willing to admit other solar projects could advance later on is significant after the sputtering seen in the earliest days of the Trump administration. We’d seen hints of progress seeping through updates to BLM webpages. In mid April, we reported the agency quietly updated the timetable for the Esmerelda 7 mega-solar project in Nevada to say the agency would issue a final decision on the project this summer. I took a peek through the BLM data and found other examples of the same thing, including the Bonanza solar farm, which is now expected to receive its final environmental impact statement in June according to the project website.
BLM has also moved forward with transmission lines on federal lands that would go to solar projects off federal lands, indicating a level of agnosticism about connecting solar farms to the grid if the energy is generated on private property.
It’s still not clear whether solar permits will be a steady trickle for the foreseeable future or if this form of renewable energy could benefit from the Trump administration’s desires to maximize energy generation. Take all of this with a grain of salt because at any moment, a news cycle or disgruntled legislator could steal the president’s ear and make him angry at solar power.
But in times as chaotic as these for U.S. renewables developers, we’ll take this ray of sunshine.
And more of the week’s top news in renewable energy conflicts.
1. Hampden County, Massachusetts – Disgruntled residents in the small city of Westfield have won their fight against a Jupiter Power battery storage project.
2. Staten Island, New York – Speaking of people booing battery storage, the battle over BESS on Staten Island is potentially turning into major litigation.
3. Montgomery County, Maryland – County planners have approved a small solar farm on agricultural lands in the small D.C. exurb of Rockville surprising even the project’s developer Chaberton Energy.
4. Mecklenburg County, Virginia – A 90-acre RWE solar project has been rejected for the second time by county officials despite the developer slimming down the project size in response to local complaints.
5. Licking County, Ohio – The Ohio Supreme Court is allowing Open Road Renewables’ utility-scale Harvey Solar project to proceed over objections from angry neighbors.
6. Adams County, Illinois – It’s not all sunshine and roses in the Midwest though, as even a relatively tiny solar farm is struggling to get approval in rural Illinois.
7. Pierce County, Wisconsin – An AES utility-scale solar farm is getting significant pushback from surrounding residents over farmland impacts.
8. Dickinson County, Iowa – Invenergy has removed some turbines from its Red Rock Wind Energy Center in a bid to try and overcome a vocal contingent of opposition in the county.
9. Cedar County, Iowa – Elsewhere in the Hawkeye State, an Iowa farmer is suing Nordex claiming that a wind turbine fire damaged his wheat crop.
10. Lincoln County, Oklahoma – A battery storage facility proposed by Black Mountain is the subject of an investigative news article about opposition to BESS in Oklahoma.
11. Santa Barbara County, California – The backlash to the Moss Landing battery fire has now led the central coast city of Santa Maria to ban new battery storage facilities.
A conversation with Jason Marshall of Massachusetts’ Executive Office of Energy and Environmental Affairs
This week’s conversation is about transmission. It may have been lost in the shuffle but earlier this week, the state of Massachusetts led a coalition of Northeast states in releasing a joint strategic action plan on transmission planning. We haven’t covered transmission fights too much yet in The Fight (that’ll change soon, stay tuned). So I wanted to learn more about how and why this plan came together, especially given how crucial wires will be to connecting renewables to the grid there. So I got on the horn with Jason Marshall, deputy secretary and special counsel for federal and regional energy affairs in Massachusetts’ Executive Office of Energy and Environmental Affairs. We wound up chatting about how significant this plan is – and a little bit about folk music too.
The following transcript is a slightly abridged version for clarity.
To start – why does this strategic action plan exist?
The strategic action plan has actually been about two years in the making and it’s something that the Healy-Driscoll administration has actually led from our office, knowing there’s a gap in transmission planning.
How transmission planning works today is it focuses on facilities developed within a specific planning region but Massachusetts – and all states – don’t exist as energy islands and we should be collaborating more closely across all regions. We saw a gap in identifying needs in the system, where we were only looking at needs within our singular region, and not looking at whether there are more cost effective ways to solve a reliability issue by enhancing ties with neighbors. That was basically it. There’s not a routine process that exists right now to do interregional planning.
Help me understand how transmission planning helps mitigate conflicts in developing transmission?
Planning in general helps mitigate conflict. You’re being proactive and have transparent procedures developed and put in place for how the process works.
This goes back to what the gap is. Because we don’t have formalized rules to do transmission planning, to the extent there are interregional transmission lines that our state develops, it’s happening on an ad hoc basis. It’s a project-by-project type of a process.
What are the conflicts most crucial to manage in transmission siting?
So taking a step back, this strategic action plan is not focused on siting and permitting. Massachusetts passed a landmark law last year that significantly reformed the siting and permitting process in [the state]. But that being said, this goes back to one of your earlier questions: if you have formalized procedures in place, in a set of rules filed with regulators, that’s a way to make sure there’s an efficient process with transparency at the earliest possible stage.
Walk me through how the plan does that.
There’s several components. In our view, the plan is really anchored by a request for information we hope to issue as early as this summer inviting project developers to submit design concepts to this group of states involved in the effort. I don’t think anything like that has ever been done before. The other part of that [request] is work the states plan to do, inviting stakeholders and market participants, to participate in a discussion on cost allocation and how the states may divide the costs of any interregional project that might come to fruition through this process. These are two really important steps that create formality around this.
Briefly, on that point, and I think this is important: typically the way transmission planning is done, you come up with a set of rules and then you implement those rules. But because those rules don’t exist, this group of states is collaborative and doing this in reverse, using potential real projects as a catalyst to explore broader reforms.
The last question is just a broader one about transmission and the power mix. A pretty crucial aspect of Massachusetts’ expected renewable energy portfolio is supposed to be offshore wind. We’re dealing with hurdles in that space right now. How does that impact your transmission planning and the power grid?
If you look through the plan, what will come across is that the effort is broader than any one specific resource. That’s purposeful. This group of states recognizes the many benefits that transmission provides, from increasing access to markets for lower price energy to reliability and resiliency. And it can include connecting new resources, and it’s not specific to any resource type.
That being said, like all resources, offshore wind could potentially be enabled through the work we’re doing. A number of resources could potentially be facilitated through this work. One of the components of the plan is trying to standardize equipment design used for transmission which is a real technical issue but it has real consequences in terms of facilitating a network transmission grid, making sure the equipment is interoperable and we can talk to each other.
To conclude, a fun question: what was the last song you listened to?
The last song? It was “Automatic” by The Lumineers. I love the new album, they’re coming to Fenway Park in July and I’m taking my daughter to the show.