The Ohio Supreme Court affirmed the decision of the Ohio Power Siting Board (OPSB) in granting a certificate for the second phase of the Buckeye Wind project.
The court ruled 5-2 in favor of affirming the board’s decision. The ruling was announced Wednesday, almost four months after oral arguments were held in the case.
The OPSB granted a certificate for construction in the second phase of the project in May 2013. This was followed by appeals to the state Supreme Court from intervening parties in November 2013.
The appealing parties included Champaign County, Goshen, Union and Urbana townships and citizen group Union Neighbors United (UNU).
In the majority opinion, Justice Judith L. French wrote that as with the first phase of the project, the intervening parties had not demonstrated that the board’s decision was unreasonable or unlawful. She added the parties also were unable to demonstrate that the board’s discovery and evidentiary rulings meaningfully affected the outcome.
“The county and the neighbors were active participants at every stage of the board proceeding,” French stated. “Indeed 36 witnesses testified at the three-week hearing, with the neighbors presenting six witnesses and the county presenting four. The parties introduced 122 exhibits, and the hearing resulted in a 3,010 page transcript.
“The board issued a comprehensive opinion reviewing and addressing all of the parties’ arguments. The county and the neighbors have not proven that it is necessary to reopen the record to engage in more discovery or to hear more evidence.”
Chief Justice Maureen O’Connor along with Justices Terrence O’Donnell, Judith Ann Lanzinger and William M. O’Neil agreed with the opinion.
Justice Sharon L. Kennedy offered a dissenting opinion, with which Justice Paul E. Pfeifer agreed.
“In my view, the board’s decision to grant the certificate was unreasonable and unlawful because the blade-throw setbacks and the default method used to calculate background noise in a rural area are unsupported by the record and are against the manifest weight of the evidence,” Kennedy stated. “Therefore, I would reverse the decision of the board and remand for further proceedings consistent with this opinion.”
EverPower reaction to court ruling
In a statement sent to the Daily Citizen, project manager Jason Dagger said Wednesday that project applicant EverPower is “delighted” with the court’s ruling.
“We are delighted with this validation of the wind farm proposal and look forward to work with the community to resolve outstanding issues so we can move to construct this clean energy project that will generate millions in tax and local revenue for the area over the life of the project,” Dagger stated.
Under development since 2006, the Buckeye Wind project proposed to construct more than a combined 100 turbines in Champaign County through two phases of the project.
Intervening parties react
The county and townships have been represented by the Champaign County Prosecutor’s Office. Following Wednesday’s ruling, Champaign County Prosecutor Kevin Talebi stated while the office respects the ruling it will continue to do everything to ensure the interests of the county and townships are protected.
In their notice of appeal, the county and townships contended the OPSB erred in failing to require the project applicant to post financial assurance for decommissioning the project in an amount sufficient to cover the total decommissioning costs, failing to include a condition requiring that setbacks from the turbines to non-participating landowners’ property lines conform to the manufacturer’s setback recommendation if in excess of the minimum setback provided by rule, and failing to conduct proceedings to afford due process in its hearings as the county and townships had no meaningful ability to cross-examine experts regarding parts of the application.
The county and townships are appealing an amendment to the first phase of the project at the state Supreme Court.
UNU’s attorney Jack Van Kley said Wednesday the group agreed with the dissenting opinion.
“It’s primarily the responsibility of the Power Siting Board to make sure that the public is protected from any hazards that can occur at these wind projects and the board failed to do that job in this instance,” Van Kley said. “Even to the extent of allowing wind companies to hide evidence about the hazards from their facilities. It’s the board’s responsibility in the first instance to make sure that it runs a fair hearing and that it considers any evidence on both sides that has a bearing on whether the facility will be safely operated and the board ran a one-sided, unfair hearing in this case even to the extent of doing everything it could to prevent us from uncovering concealed evidence about the hazards of flying blades at these wind facilities.”
Within its motion to appeal, UNU contended the board excluded evidence, sustained objections to direct testimony and cross-examination, and quashed subpoenas seeking evidence of the potential health, welfare, and safety hazards posed by wind farms. UNU’s appeal also expressed concerns about setbacks between wind turbines, roadways, and neighboring residences and properties, stating the ones established in the certificate were inadequate to prevent threats and damage to non-participating neighbors and the public from blade throw and other potential health risks.
Last October, UNU appealed the board’s decision to approve an extension in the first phase of the project, moving the deadline for construction to begin from March 2015 to May 2018. This appeal is also pending with the state Supreme Court.
The state Supreme Court’s opinion on the second phase of the project can be read at https://supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-ohio-1513.pdf
Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.