"Construction and Operation of Certain Industrial Solar Plants...Constitute A Potential Public Health Risk"

You read that title correctly! Dr. Remington Nevin, Medical Director of the St. Clair County Health Department in Michigan just came out with a memorandum to the County’s Advisory Board of Health and Liz King, its Health Officer. It's remarkable reading and may be found here.

Here is the summary (emphasis added):

As described in my November 25, 2024 memorandum to the St. Clair County Board of Commissioners, I have determined that the construction and operation of certain industrial solar plants and data centers, located in whole or in part within St. Clair County, and comprising energy facilities eligible for certification by the Michigan Public Service Commission (“the commission”) under Public Act 233 of 2023 (“eligible facilities”), constitute a potential public health risk to the residents of St. Clair County, and that these facilities are therefore subject to local public health oversight and action.

This memorandum is intended to provide medical public health guidance, including brief authority and rationale, for the local regulation of such eligible facilities by the St. Clair County Health Department, including under its authority to “[a]dopt regulations to properly safeguard the public health and to prevent the spread of ... sources of contamination,” MCL 333.2435(d). It is anticipated that the Health Officer, with the recommendation of the Advisory Board of Health, will consider this guidance in determining whether and how to adopt appropriate local regulations in this regard, per MCL 333.2441–2442.

This was then followed by several recommendations, including the rationale for each. This one stands out:

Recommendation (1): Define “eligible facilities” subject to local public health regulation as those eligible for certification under Public Act 233 of 2023, including solar energy facilities with a nameplate capacity of 50 megawatts or more, and energy storage facilities with a nameplate capacity of 50 megawatts or more and an energy discharge capability of 200 megawatt hours or more, such as may be collocated with a data center or separately sited.

Rationale: “Legally, governments use their police powers to protect public health… through zoning.” Hirschhorn (2024). By pre-emption of the local zoning process in the siting of eligible facilities through the process of certification, Public Act 233 of 2023 eliminates the ability of local elected governments to independently protect the public from potential public health risks associated with the siting of these facilities. As described in my November 25, 2024 memorandum, and as will be articulated in further detail below, the provisions of Public Act 233 of 2023, including those in Sec. 226(8), are insufficient to protect the public’s health from these potential risks, necessitating local public health regulation.

It stands out because what is being recommended is a way around the pre-emption of local zoning restrictions that renewables advocates have convinced many states to enact, including Michigan. Directly addressing potential impacts of solar and wind facilities through health statutes rather than land use laws is not only brilliant but probably sound from a legal perspective. Blanket restrictions in the form of prohibitions are far less defensible than standards that have to be met to protect health and safety.

Here are some of the additional recommendations:

Recommendation (2): Require that any electric provider or independent power producer proposing to construct or operate an eligible facility, to be located in whole or in part within St. Clair County, and notwithstanding any potential prior approval of the eligible facility by a local governing body, first make a successful application for a certificate from the commission per the provisions of Public Act 233 of 2023, Sec. 222–225, prior to independent review of the application by the St. Clair County Health Department and Advisory Board of Health; such review taking into account specific concerns identified by local residents and local elected governments, including at public meetings and proceedings and through public comments solicited per the provisions of Public Act 233 of 2023, Secs. 223(1) and 226(2)–(3); and such review independently concluding, notwithstanding any other provisions of law or regulation, including Public Act 233 of 2023, Sec. 226(8), that no unreasonable threat to public health is posed by the construction or operation of the eligible facility, prior to local authorization.

Recommendation (3): Define residents of St. Clair County in proximity to proposed or existing construction or operation of eligible facilities as constituting a “particularly vulnerable population group” per MCL 333.2433(1), requiring by statute that the local health department “diligently endeavor” to prevent and control “health problems” among them.

Recommendation (4): Find that notwithstanding any other provisions of law or regulation, including Public Act 233 of 2023, Sec. 226(8), that an unreasonable threat to public health is posed by construction or operation of an eligible facility which substantially obscures the natural soundscape or which results in an increase in ambient broadband noise levels of 10 db(A) or a detectable tonal sound at any point on an adjacent nonparticipating property.

Recommendation (5): Find that notwithstanding any other provisions of law or regulation, including Public Act 233 of 2023, Sec. 226(8), that an unreasonable threat to public health is posed by construction or operation of an eligible facility in the absence of appropriate screening, including through vegetation, berms, and setbacks, intended to eliminate the adverse visual impact of the eligible facility on adjacent nonparticipating properties.

Recommendation (6): Find that notwithstanding any other provisions of law or regulation, including Public Act 233 of 2023, Sec. 225(1)(r), that an unreasonable threat to public health is posed by construction or operation of an eligible facility in the absence of a decommissioning plan that provides for a separate financial assurance of at least $100,000 per megawatt of nameplate capacity in escrow to the St. Clair County Health Department, and subject to annual increases for inflation, to provide for control of potential sources of contamination.

Robert Bryce has written extensively on the subject of community rejection of solar and wind facilities. This is yet another example, but with a different approach, one focused explicitly on the impacts of these humongous projects by imposing performance standards, so as to avoid pre-emption restrictions and the legal risk of acting arbitrarily. It makes a great deal of sense.

A live stream of the St Clair County Health Advisory Board meeting may be found here. The board approved the preparation of detailed regulations in anticipation there will be a legal challenge, of course. Dr. Nevin speaks at about 1:04.

It will be fascinating to see how this goes. Rural communities across the country are “mad as hell” about states trying to shove these solar and wind boondoggles onto their communities. Will this approach be successful? Only time will tell!

#Solar #Wind #HealthHazards #St.ClairCounty #Michigan #Preemption