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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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Hotspots

Judge, Siding With Trump, Saves Solar From NEPA

And more on the week’s biggest conflicts around renewable energy projects.

The United States.
Heatmap Illustration/Getty Images

1. Jackson County, Kansas – A judge has rejected a Hail Mary lawsuit to kill a single solar farm over it benefiting from the Inflation Reduction Act, siding with arguments from a somewhat unexpected source — the Trump administration’s Justice Department — which argued that projects qualifying for tax credits do not require federal environmental reviews.

  • We previously reported that this lawsuit filed by frustrated Kansans targeted implementation of the IRA when it first was filed in February. That was true then, but afterwards an amended complaint was filed that focused entirely on the solar farm at the heart of the case: NextEra’s Jeffrey Solar. The case focuses now on whether Jeffrey benefiting from IRA credits means it should’ve gotten reviewed under the National Environmental Policy Act.
  • Perhaps surprisingly to some, the Trump Justice Department argued against these NEPA reviews – a posture that jibes with the administration’s approach to streamlining the overall environmental analysis process but works in favor of companies using IRA credits.
  • In a ruling that came down on Tuesday, District Judge Holly Teeter ruled the landowners lacked standing to sue because “there is a mismatch between their environmental concerns tied to construction of the Jeffrey Solar Project and the tax credits and regulations,” and they did not “plausibly allege the substantial federal control and responsibility necessary to trigger NEPA review.”
  • “Plaintiffs’ claims, arguments, and requested relief have been difficult to analyze,” Teeter wrote in her opinion. “They are trying to use the procedural requirements of NEPA as a roadblock because they do not like what Congress has chosen to incentivize and what regulations Jackson County is considering. But those challenges must be made to the legislative branch, not to the judiciary.”

2. Portage County, Wisconsin – The largest solar project in the Badger State is now one step closer to construction after settling with environmentalists concerned about impacts to the Greater Prairie Chicken, an imperiled bird species beloved in wildlife conservation circles.

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Spotlight

Renewables Swept Up in Data Center Backlash

Just look at Virginia.

A data center.
Heatmap Illustration/Getty Images

Solar and wind projects are getting swept up in the blowback to data center construction, presenting a risk to renewable energy companies who are hoping to ride the rise of AI in an otherwise difficult moment for the industry.

The American data center boom is going to demand an enormous amount of electricity and renewables developers believe much of it will come from solar and wind. But while these types of energy generation may be more easily constructed than, say, a fossil power plant, it doesn’t necessarily mean a connection to a data center will make a renewable project more popular. Not to mention data centers in rural areas face complaints that overlap with prominent arguments against solar and wind – like noise and impacts to water and farmland – which is leading to unfavorable outcomes for renewable energy developers more broadly when a community turns against a data center.

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Q&A

How the Wind Industry Can Fight Back

A conversation with Chris Moyer of Echo Communications

The Q&A subject.
Heatmap Illustration

Today’s conversation is with Chris Moyer of Echo Communications, a D.C.-based communications firm that focuses on defending zero- and low-carbon energy and federal investments in climate action. Moyer, a veteran communications adviser who previously worked on Capitol Hill, has some hot takes as of late about how he believes industry and political leaders have in his view failed to properly rebut attacks on solar and wind energy, in addition to the Inflation Reduction Act. On Tuesday he sent an email blast out to his listserv – which I am on – that boldly declared: “The Wind Industry’s Strategy is Failing.”

Of course after getting that email, it shouldn’t surprise readers of The Fight to hear I had to understand what he meant by that, and share it with all of you. So here goes. The following conversation has been abridged and lightly edited for clarity.

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