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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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Spotlight

The Summit Carbon Pipeline Is Having a Great Trump Transition

And what renewables can learn from it.

The Summit Carbon Pipeline Is Having a Great Trump Transition

A sprawling multi-state carbon pipeline appears easier to permit and build than wind and solar farms in red states, despite comments the president-elect or his team may have said on the campaign trail. And the answer has to do with more than just the potential benefits for oil and gas.

The Summit Carbon Solutions CO2 pipeline network would criss-cross five states – Iowa, Minnesota, Nebraska, and the Dakotas – connecting dozens of ethanol “biorefinery” plants to carbon sequestration sites for storing CO2 captured while producing the agri-fuel. On paper Summit has its work cut out for it in ways not dissimilar to the troubles facing solar and wind. Land use issues, ecological concerns, the whole lot. And its work has become controversial amongst a myriad of opposition groups I often write about like rural farmers and, of course, conspiratorial NIMBYs – chief among them Vivek Ramaswamy and Robert F. Kennedy Jr., two members of the incoming Trump administration.

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Hotspots

Southcoast Wind’s Last Dash

And more of this week’s top fights around renewable energy.

Map of renewable energy fights.
Heatmap Illustration

1. Nantucket County, Massachusetts – The Biden administration is rushing to finish permitting Ocean Winds’ Southcoast Wind project, a joint venture between EDP Renewables and Engie, before Donald Trump returns to the White House. Questions remain as to whether it can be done.

  • Since Election Day, Southcoast Wind has received full environmental review and received a draft EPA air permit last week. We’re still waiting on a record of decision though and until then, all bets are off.
  • Complicating matters is the town of Nantucket, Massachusetts, which is now fighting the Bureau of Ocean Energy Management to get more money and benefits in the event the project is fully permitted. They’re worried about blade failures.
  • Legal counsel for the town wrote BOEM on Oct. 30 objecting to the agency’s plans for mitigating potential impacts to the town’s historic properties, arguing the Vineyard Wind blade collapse must be fully investigated before any final approvals are granted.
  • Given how Southcoast Wind is close to the finish line at the federal level, I’m watching to see if this dispute with Nantucket becomes a basis for a permitting reversal in the event it can’t make its way through the process before Trump comes into office.

2. Pittsburgh County, Oklahoma – Momentum is building for an anti-wind moratorium in this Oklahoma county home to multiple proposed wind projects.

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Policy Watch

Trump’s Energy Direction: 5 Early Takeaways

And more on this week’s top policy and energy news.

Trump and wind.
Heatmap Illustration/Getty Images.

Trump’s energy direction – We’re far enough into the Trump 2.0 transition that I can offer a few specific insights having covered him the first go-around.

  1. Trump’s pick for Interior Secretary Doug Burgum indicates any form of energy or resource extraction prevalent in his state of North Dakota could be safe from the wrath of political meddling in permitting. That includes onshore wind and battery metals.
  2. Trump’s selection for Energy Secretary – gas CEO Chris Wright – indicates even more reason for optimism about mining given the heavy overlap between companies in historic fracking development and U.S. lithium industry growth.
  3. Trump’s EPA pick Lee Zeldin previously backed legislation to ease permitting for renewable energy, though I anticipate from his lack of agency leadership experience that he’ll be more deferential to political directions than a former governor or CEO.
  4. Cantor Fitzgerald CEO Howard Lutnick was chosen for the Commerce Department, which will dictate tariff proposals. Although Cantor Fitzgerald itself supports the “megatrend” that is the energy transition, I expect China hawkishness to prevail above fear of short-term impact on American renewables projects.
  5. Even with all this, you should expect the deputy picks to matter for solar and wind. Trump 1.0 began with figurehead agency leaders (Ryan Zinke at Interior, Scott Pruitt at EPA) and an empowered assistant administrator, who was usually a former lobbyist or ideologue. I’m anticipating the same here.

New hydrogen hub backing – The Energy Department has announced more than $2.2 billion in cost-sharing agreements with two more hydrogen hubs in the Midwest and Gulf Coast.

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