Michigan has recently taken steps to centralize and streamline the siting of renewable energy projects, in response to ongoing challenges from local opposition. In 2023, the Michigan state legislature enacted, and Governor Whitmer signed, Public Act 233 (PA 233) which establishes limits on the types of restrictions that local governments can place on renewable energy projects and requires the Michigan Public Service Commission (MPSC) to step in when local governments exceed those limits.
Under PA 233, the MPSC has the authority to approve large wind (100 MW or greater), solar (50 MW or greater), and battery storage (50 MW or lager) projects, unless the local government where the proposed project is to be located has adopted a compatible renewable energy ordinance (CREO) that is “no more restrictive” than state requirements. Prior to PA 233, all such projects required approval from local governments, which often delayed or blocked them. PA 233 sought to limit local governments’ ability to do this and, perhaps unsurprisingly, faced strong pushback from those governments.
In Almer Charter Township et al. v. Michigan Public Service Commission et al, 72 townships and 7 counties in Michigan challenged an MPSC order implementing PA 233. They claimed, among other things, that the MPSC Order defined CREO too narrowly and that they should have greater scope to adopt their own rules with respect to renewable energy development. In a decision handed down in May this year, the Michigan Court of Appeals upheld MPSC’s more limited definition. This blog post discusses the Court’s reasoning and explores the decision’s implications for renewable energy development in Michigan. As discussed below, by upholding the MPSC’s order on CREOs, the court effectively limits local governments’ ability to restrict new renewable energy development.
Public Act 233 and the MPSC Order Implementing It
In October 2024, the MPSC adopted an order implementing PA 233 which, among other things, defined what can and cannot be included in a CREO. This is important because PA 233 allows developers of utility-scale renewable energy projects to bypass local approval processes and instead obtain project approval directly from the MPSC if the relevant local government (described in the statute as an “affected local unit” ) has not adopted a CREO that meets the minimum standards outlined in PA 233 and the MPSC order.
Under PA 233, a CREO may only contain the setback, fencing, height, sound, and other applicable requirements expressly outlined in Section 226(8) and may not impose additional requirements beyond those specifically identified in that section. Thus, for example, an affected local unit considered not to have a CREO if it has a moratorium on the development of energy facilities in effect within its jurisdiction. However, an affected local unit with a CREO retains the power to regulate certain aspects of the project that are not covered by PA 233, such as the project’s location, insurance requirements, and decommissioning procedures. A CREO can also regulate topics that are covered by PA 233, so long as they are not more restrictive than the state requirements. (For more information on PA 233, see our previous blog post here.)
Local Governments’ Challenge
In November 2024, 72 townships and 7 counties challenged the MPSC order to the Michigan Court of Appeals in Almer Charter Township et al. v. Michigan Public Service Commission et al. The townships and counties argued that the MPSC had erred in its interpretation of certain key terms in PA 233, including what can and cannot be included in a “CREO” and what affected local units can adopt them.
The plaintiffs requested a preliminary injunction to prevent the order entering into force while the litigation was playing out. The Sabin Center, along with local counsel, submitted an amicus brief highlighting the harms to landowners and the State that would result from granting an injunction. Meanwhile, a coalition of business and environmental groups, including the Michigan Energy Innovation Business Council (MEIBC), intervened as parties in support of the MPSC Order. The preliminary injunction was denied by the Michigan Court of Appeals on January 14, 2026. The court then turned to the substance of the plaintiff’s challenge to the MPSC order.
The Michigan Court of Appeal’s Decision
On May 7, 2026, the Michigan Court of Appeals issued its decision, upholding key aspects of the MPSC’s order, including its interpretation of “CREO.” The local governments argued that the MPSC’s interpretation of CREO was overly limiting and that the Commission exceeded its authority when it declared that CREOs could not include addition requirements not listed in Section 226(8). The Court of Appeals rejected this argument.
The Court reasoned that the Legislature did not intend to allow CREOs to include additional requirements outside those specifically listed in Section 226(8). In the Court’s view, “the limiting language [of PA 233] is not a restriction on what subjects can be part of a CREO, it only limits a CREO to imposing more restrictive requirements than those contained within the subjects actually addressed within [Section 266] subsection 8.” This ruling upholds the MPSC’s interpretation that a CREO can only address the requirements outlined in PA 233, instead of a broader definition which would expand what types of ordinances local governments could enact with respect to renewable energy projects.
The Michigan Court of Appeals also considered the question of what constitutes a “local unit of government” that can adopt a CREO. PA 233 defines an “affected local unit” (ALU) to mean “a local unit of government in which all or part of a proposed energy facility will be located, and further clarifies a “local unit of government” to mean “a county, township, city or village.” In its October 2024 Order, the MPSC sought to limit the definition of “local unit of government” to “a county, township, city or village with zoning jurisdiction” (emphasis added). In their challenge to the order, the plaintiffs argued that this was inconsistent with PA 233. The Court of Appeals agreed. The court determined that the statutory definition was “plain and unambiguous” and includes all local units of government where a proposed energy facility will be located. The court emphasized that the statutory definition does not refer to only those local units of government that have zoning jurisdiction; instead, when defining an affected local unit, the Legislature included within the definition all local units of government in which “all or part of a proposed energy facility will be located.”
Another issue in the appeal was the MPSC’s addition of “hybrid facilities” to the list of facilities covered by PA 233. The MPSC defined “hybrid facilities” to mean “energy facilities comprised of multiple technology types” and specified that “when multiple technology types are combined into a hybrid facility, the higher applicable capacity threshold is utilized to determine whether the PSC may assume jurisdiction.” For example, if a hybrid facility comprises of a wind energy and battery storage system, that system would need to be 100 MW or larger to fall within the scope of PA 233. The local governments argued that such hybrid facilities should not be included at all. The Court of Appeals disagreed and instead upheld the MPSC’s inclusion of hybrid facilities.
Next Steps
The Court of Appeal’s ruling appropriately upholds the MPSC authority over renewable energy projects, as outlined in PA 233, and limits the restrictions local governments can impose on such projects. However, the legal battle does not end here. The Court of Appeal’s decision has been appealed by the local governments to the Michigan Supreme Court. The Michigan PSC has until July 16th to file its response, and then the Michigan Supreme Court will decide whether or not to take on the appeal.
Hema Lochan is a Senior Fellow in the Sabin Center's Renewable Energy Legal Defense Initiative.
