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

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

“Not only is the MPSC wrong on the law, but it is also grossly overstepping its authority as an administrative agency,” Chair of Foster Swift’s Administrative Municipal Practice Group Michael D. Homier wrote to municipalities in an undated letter that has been widely-circulated among counties, townships, and municipal associations despite being marked as “subject to attorney-client privilege.”

Escanaba Township, which is both a hotbed of contention over solar development and is represented by a municipal attorney from Foster Swift, joined the suit Oct. 14.

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

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

Viau further described the suit as a “backdoor” loophole “trying to stop the projects that are potentially on the table now.”

Escanaba Township, which has a lengthy 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 an area of less than 400 acres bordering Brampton Township, east of the Escanaba River, the vast majority of which is contained in a single parcel. A further restriction in the ordinance limits solar developments to 20% 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 that was slated to be placed in the Flat Rock area of the township, which initially had broad support from the township board. That support faded when a group of anti-solar development individuals joined the township’s planning commission and township board, but the landowners that were contracted to be a part of the project have continued to seek other avenues to use their land for solar power generation.

If the MPSC’s interpretation of the law is upheld, Escanaba Township’s overlay district would be incompatible and the township would have no decision making power over siting utility scale solar projects. In addition, the township could potentially lose out on financial reimbursements provided to municipalities with Compatible Renewable Energy Ordinances, commonly referred to as “CREOs” in place.

PA 233 specifies that if municipalities want to be involved in the siting process and not have site plans processed by the MPSC directly they must adopt a CREO. PA 233 defines these CREOs as “an ordinance that provides for the development of energy facilities within a local unit of government, the requirements of which are no more restrictive than the provisions included in Section 226(8).” Section 226(8) outlines a number of requirements like heights, setbacks, fence specifications, and lighting restrictions.

The MPSC order states that 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 order specified local units were “a unit of local government in which all or part of a proposed energy facility will be located” and was, contrary to PA 233 in “attempting to limit affected local units to only those municipalities that exercise zoning jurisdiction.”

Local units of government that do not exercise zoning jurisdiction typically do not participate in the site planning process, as they have no rules in place to regulate development.

Despite the fact multiple landowners are still attempting to use their land for solar and Escanaba Township’s overlay district quashed a planned development on their properties, the majority of the Delta County Board of Commissioners disagreed with Viau’s position that the lawsuit was attempting to stop potential projects.

“This (lawsuit) specifically, though, that we were asked on, that came through the Township Association (is) on the Public Service Commission’s overreach. Nothing about cancelling any projects. It’s about the overreach that they did in the course of their business where they decided they were judges vs executive branch,” said Commissioner Matt Jensen.

Commissioner Kelli van Ginhoven concurred that it was about overreach. Board Chair John Malnar said the MPSC was “trying to take the township and the county authority away from them.”

Ultimately, the issue of entering into the suit came down to time and money. No estimates of the cost of participating in the suit were provided to the county and the deadline to join the suit was Nov. 8. Open Meetings Act requirements for posting 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 gather and approve or deny entering into the suit.

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