ESCANABA — The Delta County Board of Commissioners has voted not to file a class action lawsuit against the state of Michigan over Public Law 233, which critics have argued removes local control from municipalities to regulate utility-scale solar and wind development in communities their. and gives it to the Michigan Public Service Commission.

The lawsuit filed Tuesday is filed by Michigan law firm Foster Swift, which represents a number of Upper Peninsula municipalities, against the MPSC. Foster Swift’s argument in the lawsuit is that the MPSC overstepped its authority in a 168-page order the MPSC issued on Oct. 10 that clarified the permitting process it will use when siting renewable energy facilities.

“Not only is the MPSC getting the law wrong, it is far exceeding its authority as an administrative agency,” Foster Swift’s Municipal Administrative Practice Group Chair Michael D. Homier wrote to municipalities in an undated letter that was widely circulated among counties, townships and municipal associations, although it was marked as “subject to attorney-client privilege.”

The city of Escanaba, which is both a hotbed of solar development disputes and is represented by a municipal attorney from Foster Swift, joined the suit on Oct. 14.

Commissioner Steve Viau, who represents District 1 in Escanaba Township and regularly attends township meetings, said he opposes the county joining the suit based on his conversations with residents and utility providers.

“I’ve talked to some of the solar providers like DTE and they say it could be a struggle and it could cost some money and we’re going to lose money trying to move forward with this process at this point. I try to stay neutral because I represent both sides, a lot of people don’t want industrial solar; there are some who want that and I just think the state has made the decision.” he said.

Viau further described the process as a “back door” loophole “We’re trying to stop projects that are potentially on the table now.”

The city of Escanaba, which has a long and tumultuous history with solar development proposals, adopted a zoning ordinance amendment in 2022 that uses an overlay district to restrict utility-scale solar development to less than 400 acres which adjoins Brampton Township, east of Escanaba. River, the vast majority being included in a single parcel. An additional restriction in the ordinance limits solar development to 20 percent of a single parcel, leaving less than 80 buildable acres in the township.

The overlay district and restrictions effectively ended a proposed utility-scale solar development to be placed in the city’s Flat Rock area that initially had broad support from the community board. Support faded when a group of people opposed to solar development joined the planning commission and town council, but landowners who were contracted to be part of the project continued to seek other ways to use their land for generation of solar energy.

If the MPSC’s interpretation of the law is upheld, the City of Escanaba’s overlay district would be inconsistent and the township would have no decision-making power over the siting of utility-scale solar projects. In addition, the township could lose financial reimbursements offered to municipalities with compliant renewable energy ordinances, commonly referred to as “CREOS” straight away.

PA 233 states that if municipalities wish to engage in the siting process and do not have site plans processed directly by the MPSC, they must adopt a CREO. PA 233 defines these CREOs as “an ordinance providing for the development of energy facilities within a local unit of government, the requirements of which are not more restrictive than the provisions contained in section 226(8).” Section 226(8) outlines a number of requirements such as heights, setbacks, fence specifications and lighting restrictions.

The MPSC order states that the CREOs “may not contain additional requirements more restrictive than those specifically identified in that section.” Foster Swift argues in their letter “Neither section 226(8) nor any other section of PA 233 prohibits municipalities from imposing additional zoning regulations on utility-scale renewable energy projects.”

Foster Swift further argues that the term “affected local unit” was redefined by the MPSC when the specified order local units were “a local government unit where all or part of a proposed energy installation will be located” and it was, contrary to PA 233 in “attempting to limit affected local units to only those municipalities exercising zoning jurisdiction.”

Local units of government that do not exercise zoning jurisdiction typically do not participate in the site planning process because they do not have rules in place to regulate development.

Despite several landowners still seeking to use their land for solar energy and the city of Escanaba’s overlay district nixing a planned development on their property, a majority of the Delta County Board of Commissioners disagreed with Viau’s position that the process tried to stop potential projects.

“This (process) specifically, however, that we were asked about, which came through the Township Association (is) in excess of the Public Service Commission. Nothing about canceling any projects. It’s about the overreach they made in the course of their business where they decided they were judges vs. executive”, Commissioner Matt Jensen said.

Commissioner Kelli van Ginhoven agreed that it was overreach. Board President John Malnar said the MPSC was “Trying to take the city and county authority away from them.”

In the end, the issue of getting into the process came down to time and money. No cost estimates for joining the lawsuit were provided to the county, and the deadline to join the lawsuit was Nov. 8. Open Meetings Act requirements for publicizing a special meeting meant that by the time the law firm could be contacted for more information, it was likely too late for the board to meet and approve or deny entry into the lawsuit.

In a roll call vote, the board voted unanimously not to participate.