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Court Upholds Power Siting Board Order Approving Champaign County 'Wind Farm'

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2010-1554.  In re Application of Buckeye Wind, L.L.C., Slip Opinion No. 2012-Ohio-878.
Appeal from the Power Siting Board, No. 08-666-EL-BGN. Order affirmed.
O'Connor, C.J., and Lanzinger and McGee Brown, JJ., concur.
O'Donnell, J., concurs in judgment only.
Pfeifer, Lundberg Stratton, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-878.pdf

Video clip View oral argument video of this case.

(March 6, 2012) The Supreme Court of Ohio today upheld an order issued by the state’s Power Siting Board approving the application of Buckeye Wind LLC to construct and operate a large-scale “wind farm” in Champaign County. The court’s 4-3 majority opinion was authored by Justice Judith Ann Lanzinger.

The facility, which will consist of 70 wind-driven rotary turbines to be constructed over a 9,000-acre area on land leased from consenting property owners, is projected to generate more than 126 megawatts of electric power, and therefore qualifies as a “major utility facility” subject to prior approval by the Power Siting Board.

Following a review process in which the siting board staff recommended modifications to an initial facility plan submitted by Buckeye Wind, the board held public hearings at which it considered additional issues and objections raised by neighboring property owners and political subdivisions. After reviewing the evidence and testimony presented by all parties, the siting board issued a final order in March 2010 approving the facility plan as modified by 70 conditions included in the construction certificate.

Champaign County and some of the neighboring non-lessor property owners exercised their right to appeal the board’s final order to the Supreme Court, raising 13 assignments of error. In today’s decision, the court overruled the appellants’ claims, held that board “acted in accordance with all pertinent statutes and regulations,” and affirmed the board’s final order approving the Buckeye Wind application.

Writing for the court, Justice Lanzinger rejected arguments by neighboring property owners that the Power Siting Board had improperly delegated to its staff the board’s exclusive authority to approve Buckeye Wind’s application by issuing a final order that approved the facility plan without first resolving several safety and environmental raised by the appellants, and directing staff to address those issues during the pre-construction process.
Justice Lanzinger wrote: “Appellants argue that the board improperly delegated its decisionmaking authority because the order allows staff members to (1) approve new sites for three turbines, (2) review and accept plans regarding the design and siting of electric-collection lines, transportation routing, tree clearing, emergency services, and complaint resolution, (3) resolve the maximum potential distance that a detached turbine blade could be thrown, and (4) determine the specific model of wind turbine to be used.  The issues characterized as improperly deferred, however, simply require additional submissions that Buckeye will make to staff before the preconstruction conference.”

“Contrary to arguments that the issues challenged by appellants must be finally resolved by the board before a certificate may be issued, R.C. 4906.10(A) allows a certificate to be issued upon such conditions as the board considers appropriate. The statutes authorize a dynamic process that does not end with the issuance of a construction certificate. The General Assembly vested the board with authority to allow its staff to monitor Buckeye’s compliance with conditions that the board has set, conditions upon which the neighbors already had the chance to be heard.”

“The board has limited Buckeye’s certificate, adding 70 separate conditions. The board followed statutory requirements in establishing each one.  ... Simply because certain matters are left for further review and possible public comment does not mean they have been improperly delegated to staff.  Any material modification to the certificate is subject to hearing ‘in the same manner as on the application.’  The neighbors’ right to be heard is safeguarded by R.C. 4906.07. Furthermore, Buckeye must continue to abide by the conditions as presently set by the board in the certificate. The board did not improperly delegate its responsibility to grant or deny a provisional certificate when it allowed for further fleshing out of certain conditions of the certificate.”

Justice Lanzinger also rejected arguments raised by the appellants, and by other members of the court in a dissent from the majority opinion, asserting that the siting board improperly foreclosed public input on the project by issuing a final order without conducting an additional hearing to resolve all of the issues raised by the appellants.

She wrote: “The dissent argues that this matter should be remanded for further hearing. It is difficult to understand what additional hearings might accomplish. All the issues were debated at length by the parties and witnesses at the evidentiary hearing. Buckeye must comply with the certificate and its conditions as imposed by the board.  ...  Furthermore, we emphasize that the board specifically recognized in its order that ‘in accordance with Section 4906.07, Revised Code, the Board is required to hold a hearing in the same manner as on the application, where the amendment of a certificate involves any material increase in any environmental impact or substantial change in the location of all or a portion of the facility.’”

“Contrary to the dissent’s argument, the public was provided a full opportunity for hearing and further hearings may be held if significant changes are made to the certificate. ... We now hold that the board acted within its authority in granting Buckeye’s certificate based on its 70 conditions.  There is no need for delay.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justice Yvette McGee Brown.  Justice Terrence O’Donnell concurred in judgment only.  Justice Evelyn Lundberg Stratton entered a dissenting opinion that was joined by Justices Paul E. Pfeifer and Robert R. Cupp.
Justice Pfeifer also entered a separate dissent that was joined by Justice Stratton.

Justice Stratton’s dissent disputed the majority’s finding that the siting board met its legal obligation when it issued a final order approving the Buckeye Wind application without conducting a follow-up hearing to publicly address several unresolved safety and environmental issues that had been raised by the appellants. As an example, Justice Stratton noted that the board accepted Buckeye Wind’s testimony that a setback of 541 feet was sufficient to protect surrounding property owners from a “blade shear” event in which one of the 170-foot-long blades from a wind turbine could be torn loose from its hub and sent flying through the air − despite the company’s admissions that its estimate was based on a smaller turbine and that it could not cite a scientific formula for predicting the flight of the larger blades it was proposing to use.

“(R)ather than withhold approval of the project until safe setbacks were determined,” wrote Justice Stratton, “(the board) approved the project.  It simply required Buckeye to provide staff, and no one else, with the ‘formula’ used to calculate the distance a blade could be thrown. ... And the board did not require Buckeye or staff to share the formula with other parties, to file it in the public record, or otherwise to resubmit the issue for review, so no one else would ever be entitled to scrutinize Buckeye’s calculations.”

“The law requires otherwise. The legislature has required the board to settle issues like this up front on a public record, and it specifically guarantees affected citizens the right to participate in the review process and to have their voices heard. ... Issues are not to be settled after construction is approved, much less by unaccountable staff members without public scrutiny or judicial review. Yet that is precisely what the board, and now the majority, has allowed.”

Justice Pfeifer joined Justice Stratton’s dissent, but also wrote separately to express his concern that the Buckeye Wind application approved by the power siting board and affirmed by the court in today’s decision includes a bond of only $5,000 per turbine to cover the potential first-year costs of decommissioning the turbines (tearing them down) if the technology should prove economically uncompetitive or Buckeye Wind should go out of business.

“The OPSB set that bond at $5,000 per turbine, despite the fact that the board heard testimony from appellants’ expert that decommissioning could cost as much as $300,000 per turbine,” wrote Justice Pfeifer. ... “It is incumbent on the OPSB to insist that there is reasonable protection for the decommissioning of windmills, whenever that decommissioning might occur. There was no evidence presented at the hearing that the $5,000 per turbine  required  by the OPSB is adequate in any way to actually bring down a windmill. ... The public at large has an interest because, ultimately, the state could be left to deal with the aftermath of a failed experiment. I suspect that this latest generation of windmills will go the way of the leisure suit: fashionable for a time, but ultimately causing us to say, ‘What were we thinking?’  But there’s no Goodwill store in the world big enough to take them off our hands.”

Contacts
Jack A. Van Kley, 614.431.8900, for Union Neighbors United.

Jane A. Napier, 937.484.1900, for Champaign County and Goshen, Salem and Union Townships.

Werner L. Margard, 614.995.5532, for the Ohio Power Siting Board.