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Spotlight

New Lawsuit Threatens Michigan’s Permitting Reform Law

The state’s landmark legislation to overrule local opposition to renewable energy is being challenged by over 70 local jurisdictions.

Michigan’s Anti-NIMBY Law
Heatmap Illustration / Getty Images

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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Q&A

How Developers Should Think of the New IRA Credit Rules

A conversation with Scott Cockerham of Latham and Watkins.

How Developers Should Think of the New IRA Credit Rules
Heatmap Illustration

This week’s conversation is with Scott Cockerham, a partner with the law firm Latham and Watkins whose expertise I sought to help me best understand the Treasury Department’s recent guidance on the federal solar and wind tax credits. We focused on something you’ve probably been thinking about a lot: how to qualify for the “start construction” part of the new tax regime, which is the primary hurdle for anyone still in the thicket of a fight with local opposition.

The following is our chat lightly edited for clarity. Enjoy.

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Hotspots

An Influential Anti-ESG Activist Targets A Wind Farm

And more of the week’s most important news around renewable energy conflicts.

Map of renewable energy fights.
Heatmap Illustration

1. Carroll County, Arkansas – The head of an influential national right-wing advocacy group is now targeting a wind project in Arkansas, seeking federal intervention to block something that looked like it would be built.

  • Will Hild, executive director of Consumers’ Research, recently called on the Trump administration to intervene against the development of Scout Clean Energy’s Nimbus wind project in Arkansas. Consumers’ Research is known as one of the leading anti-ESG advocacy organizations, playing a key role in the “anti-woke” opposition against the climate- and socially-conscious behavior of everyone from utilities to Anheuser-Busch.
  • In a lengthy rant posted to X earlier this month, Hild pointed to Carroll County’s local moratorium on wind projects and claimed Nimbus being built would be “a massive win for ESG radicals – and a slap in the face for local democracy.”
  • As I told you in April, the Nimbus project prompted Carroll County to enact the moratorium but it was grandfathered in because of contracts signed prior to the ban’s enactment.
  • However, even though Nimbus is not sited on federal land, there is a significant weak point for the project: its potential impacts on endangered birds and bats.
  • Scout Clean Energy has been working with the Fish and Wildlife Service since at least 2018 under Trump 1.0. However, the project’s habitat conservation plan was not completed before the start of the current Trump term and Scout did not submit an application for Nimbus to receive an incidental take permit from the Service until May of this year.
  • Enter the Trump administration’s bird-centric wind power crackdown and the impact of Hild’s commentary comes into fuller focus. What will happen to all the years of work that Scout and the Service did? It’s unclear how the project reckons with this heightened scrutiny and risk of undue federal attention.

2. Suffolk County, New York – EPA Administrator Lee Zeldin this week endorsed efforts by activists on Long Island to oppose energy storage in their neighborhoods.

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Spotlight

Trump’s Permit Freeze Prompts Some Solar to Eye Exits

Is there going to be a flight out of Nevada?

Solar in Nevada.
Heatmap Illustration/Getty Images

Donald Trump’s renewables permitting freeze is prompting solar companies to find an escape hatch from Nevada.

As I previously reported, the Interior Department has all but halted new approvals for solar and wind projects on federal lands. It was entirely unclear how that would affect transmission out west, including in the solar-friendly Nevada desert where major lines were in progress to help power both communities and a growing number of data centers. Shortly after the pause, I took notice of the fact that regulators quietly delayed the timetable by at least two weeks for a key line – the northern portion of NV Energy’s Greenlink project – that had been expected to connect to a litany of solar facilities. Interior told me it still planned to complete the project in September, but it also confirmed that projects specifically necessary for connecting solar onto the grid would face “enhanced” reviews.

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