July 11, 2012
Trees and Power Lines

by Justice Paul E. Pfeifer

Most of us learned a new word a couple of weeks ago – “derecho.” It’s actually the Spanish word for “straight,” but the word didn’t come to us by way of a foreign language lesson. “Derecho” is the word meteorologists use to describe the type of wind that swept through Ohio and other states on June 29, knocking down trees, leveling power lines and leaving countless homes without electricity for days.

The experts tell us that a derecho is a widespread windstorm that is associated with a band of rapidly moving thunderstorms. Unlike a tornado, the storm moves in a straight line – hence, derecho. A meteorologist in the 1880s was the first to give the straight-line winds their name.

The aftermath of the storm provided a vivid reminder of how dependent we are on the smooth, uninterrupted functioning of the power grid. The millions of people in Ohio and other states who suffered through the sweltering heat without air conditioning will attest to that.

The storm also reminded us that power lines and trees are, for the most part, natural enemies. As it so happens, several months before the storm, we – the Supreme Court of Ohio – had reviewed a case that focused on that rivalry between trees and power lines. The case involved Ohio Edison, the Public Utilities Commission of Ohio, and a man named Kurt Wimmer – the head of the Wimmer Family Trust. It also involved trees.

Ohio Edison owned a transmission-line easement that ran over the Wimmers’ property. For years, Ohio Edison, in accordance with the company’s general policy, had trimmed trees that were growing in the easement. On rare occasions, the company also removed some trees.

But that policy changed after the summer of 2003. You may recall that in August of that year, a large swath of the northeastern United States experienced a massive blackout. An investigation into the causes of the blackout revealed that several tree-to-line contacts contributed to the power outage. After that, power companies stepped up their vegetation control.

But when Ohio Edison sought to remove the trees in the easement on the Wimmers’ property, the family objected.  The Wimmers took their complaint to court, where the court of common please found in favor of Ohio Edison. On appeal, the court of appeals affirmed that ruling, concluding that Ohio Edison’s easement permitted it to remove the trees.

The Wimmers next appealed to our court. Their appeal came to us in 2009. In that case, we vacated the judgment of the court of appeals. That doesn’t mean that the Wimmers got what they were seeking though. In reaching our conclusion to vacate the court of appeals’ judgment, we held that Ohio Edison’s easement permitted the removal of trees, but that the Public Utilities Commission, not a court, was required to decide whether removal was reasonable.

After that ruling, the Wimmers took their complaint to the Public Utilities Commission. Following a hearing in which it reviewed the evidence, the Commission ruled in Ohio Edison’s favor and permitted the company to remove the trees. Once again, the Wimmers appealed to our court.

The issue that was presented to us this time around was whether the Commission erred in finding that removal of the Wimmers’ trees was reasonable.

The Wimmers argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” In their view, the evidence that was presented to the Commission at the hearing “was long on Ohio Edison’s fear and speculation and short on hard facts.”

Contrary to those assertions, however, evidence was presented at the hearing that supported the order. The Commission found that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with the ... line.”

The Public Utility Commission also found that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.”

These findings were supported by the expert testimony of Rebecca Spach, who described the trees growing in the right-of-way and explained that “the average mature heights are well above the height of the line.”

Spach went on to explain that even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electric Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards.

The Wimmers didn’t challenge the admission of Rebecca Spach’s testimony on any ground, nor did they challenge her qualification as an expert. They did not add any contrary testimony or difficulty on cross-examination that would call her testimony into question. And they did not present any argument or factual support for their assertion that her testimony was speculative.

On the contrary, Spach personally observed the trees that were in the right-of-way. The average mature height and growth rate of those trees is also a matter of observation, not guesswork.

In several previous cases our court has determined that when someone is bringing a challenge of this type against the Public Utilities Commission, the people bringing the complaint must demonstrate that the Commission’s decision is not “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” But the Wimmers failed to do that.

Because the Wimmers did not show any error in the Commission’s order, we concluded – by a seven-to-zero vote – that we must affirm the order. In so doing, we noted with approval the Commission’s admonition that Ohio Edison “attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing utility vegetation-management activities.” Like the Wimmers, Ohio Edison must comply with the Commission’s order.

EDITOR'S NOTE: The case referred to is Wimmer v. Pub. Util. Comm., 131 Ohio St.3d 283, 2012-Ohio-757. Case No. 2011-0563. Decided February 29, 2012. Majority opinion written by Justice Paul E. Pfeifer.