September 5, 2012
Windmills

by Justice Paul E. Pfeifer

In 2007, the Ohio legislature enacted a law that required utilities to provide a portion of their electricity supply from alternative energy sources – such as wind or solar – by 2025. Under the law, the Ohio Power Siting Board (OPSB) has exclusive authority to issue certificates for construction, operation, and maintenance of major utility facilities.

That’s why, when a private developer called Buckeye Wind, L.L.C. developed a plan to build 70 wind turbines over about 9,000 acres in Champaign County – an area that Buckeye considered to have a favorable blend of wind, open land, and access to the power grid – it had to be approved by the OPSB.

In April 2009 Buckeye filed an application with the OPSB. But when a group of neighboring landowners learned that Buckeye wanted to build turbines – as Justice Evelyn Lundberg put it – “the height of skyscrapers only a few hundred feet from their land and homes,” they opposed the application. They were concerned about noise, the proximity to their homes, and the size: the “blades are mounted over 300 feet from the ground, reach almost 500 feet into the air, and stretch half the length of a football field.”

The neighbors – who were to receive no compensation – also raised the possibility of “blade shear,” a potentially dangerous situation wherein a blade drops or is thrown from the turbine. But, after several public hearings, the OPSB approved construction.

County authorities didn’t oppose the siting of the turbines, but they sought financial protection through bond requirements that would ensure adequate money was available to repair roads damaged by the project, and to “decommission” the turbines if and when they became inoperable.

The OPSB agreed to require a $5,000 bond for the first year of operation. The county was dissatisfied with the amount and with the fact that the county engineer didn’t have final say on the amount.

The county and the neighbors appealed the OPSB ruling and the case came before us – the Ohio Supreme Court – for review.

Besides blade shear, the neighbors had brought numerous concerns before the OPSB, including the choice of turbine models, and the nature of the public hearings. By a four-to-three vote, our court concluded that the OPSB had fulfilled its legal duties and that its decision was reasonable and lawful.

The majority also rejected the county’s arguments, concluding that the law does not require the county engineer to have final say over the amount of any road bond. Additionally, the majority maintained that evidence at the hearing supported the amount required for the decommissioning bond.

I cast a dissenting vote – as did Justices Evelyn Lundberg Stratton and Robert R. Cupp – because I would have held in favor of the county on the issue regarding bonding to cover the cost of removing decommissioned windmills.

How many windmills does it take to power a light bulb? As many as the government will subsidize. It may not be geographically preposterous to build windmills in Ohio since we do have wind. But for how long will government be willing to subsidize a form of energy production that is uneconomical and undependable? What will become of these whopping, white whirligigs when they become technologically outmoded even in comparison to other windmills?

But there’s a bigger concern. The winds that really power alternative-energy projects like these – political winds – are also subject to change, sometimes abrupt change. A recent Chicago Tribune article said the “wind power industry is predicting massive layoffs and stalled or abandoned projects after a deal to renew a tax credit failed” in Washington.

When windmill welfare ends, the companies that build windmills, dependent as they are on government largesse and regulation, will disappear. Then what?

Ohio’s public utilities don’t own the windmills – they’re just forced to purchase the power generated from them – and will thus be under no obligation to decommission them. Windmills will become relics, 492-foot-tall white elephants, monuments to our quixotic quest for alternative energy. One such monument would do the trick; 70 are too many for Champaign County.

Granted, in this case we are dealing with the amount of a bond to cover the period from the commencement of construction of the windmills through the first year. The OPSB set that bond at $5,000 per turbine, despite the fact that the OSBP heard testimony from experts that decommissioning could cost as much as $300,000 per turbine.

But Buckeye’s witness testified that it is “inconceivable” that the project will need to be decommissioned within the first five years. He uses that word “inconceivable,” but I do not think it means what he thinks it means.

The technology behind the windmills might prove untouchable for five years, but it’s entirely conceivable that the bottom could drop out of the market for wind power or that Buckeye Wind could fail as a company.

It wouldn’t be the first alternative-energy concern to turn off its lights. The question isn’t whether the turbines work, it’s whether the economics work. The answer to our energy future is likely not blowing in the wind.

It’s incumbent on the OPSB to insist that there is reasonable protection for the decommissioning of windmills, whenever that might occur. There’s no evidence that the $5,000 per turbine required by the OPSB is adequate to actually bring down a windmill. No witness testified that $5,000 was sufficient to protect the public interest if the windmills were abandoned.

And the public most certainly has an interest that needs protection – not just the homeowners who thought they were buying a little piece of rural heaven in Champaign County and now have their pristine views obscured. 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.

EDITOR'S NOTE: The case referred to is In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 2012-Ohio-878. Case No. 2010-1554. Decided March 6, 2012. Majority opinion written by Justice Judith Ann Lanzinger.