The Michigan Public Service Commission makes decisions through a variety of processes. Some of the main processes used for decision making includes the contested case process, rule making, declaratory rulings, ex parte rulings, mediation, and arbitration. Most of these are basic straight forward legal processes that are used in all areas of the law. But some are more unique. Namely, the contested case process and how it applies to utility scale solar development.
Cases decided under the contested case process are done outside the court room. They are considered “quasi-judicial.” In other words, it is like a court proceeding but not an actual court proceeding. Contested cases are governed by the Michigan Administrative Procedures Act and the Michigan Office of Administrative Hearings and Rules. Cases referred to the Michigan Office of Administrative Hearings and Rules are contested cases which potentially may require an evidentiary hearing and are assigned an Administrative Law Judge.
Who can participate in the contested case process depends on their connection to the underlying case. There are two types of intervention in these cases: by right and permissive intervention.
Intervention by right is a legal concept which allows a third party to intervene on a case either based on a statute or when the third party’s interests may be bound by the outcome without their interests being adequately represented. In the contested case process for a utility scale solar development, this may include Michigan Public Service Commission Staff and Staff Attorneys, the Attorney General, or other parties provided for by the law.
Permissive Intervention, as opposed to intervention by right, is where intervenors who have a direct interest in the case may file a petition to intervene and the court (or other judicial body) may allow them to intervene. In the contested case context, to permissively intervene the intervenors must meet the following criteria: (1) the intervenor will potentially suffer injury in fact and (2) the intervenor’s affected interests are within the zone of interest to be protected or regulated by the statutes involved.
The contested case process for utility scale solar development facilities goes as follows.
First, an application is filed by a party, or the Michigan Public Service Commission initiates the case on its own motion. A notice of a prehearing conference is then issued. Next, petitions to intervene are filed, a prehearing conference is held, and audit and discovery commences. After, staff and intervenor testimony are filed along with rebuttal testimony. Evidentiary hearings and cross examinations occur also in this phase. Next, briefs and reply briefs are filed. Following the filing of the briefs, the assigned Administrative Law Judge issues their proposal for decision. Exceptions to the proposal for decision and replies to exceptions are filed. Finally, the Michigan Public Service Commission issues the final order and if necessary, a rehearing or appeal would occur thereafter.
Although not a formal legal proceeding, there are a lot of steps that go into the contested case process and thus you will want to have your interests adequately represented at every stage. The attorneys at Dalton & Tomich have years of combined experience in all types of judicial proceedings. Please reach out today if you have any questions.
