COLUMBUS – The Ohio Supreme Court on Wednesday heard oral arguments on an extension of certificate in the Buckeye Wind turbine project.
Project developer EverPower filed a motion for extension of certificate in July 2014, asking the Ohio Power Siting Board to extend the certificate granted in the first phase of the project in March 2010.
This certificate authorized the company to construct the project with development to commence no later than March 22, 2015. When the board approved the extension in August 2014, the certificate date was moved to May 28, 2018, the deadline for construction to begin on the second phase of the project.
Citizen group Union Neighbors United filed an application for rehearing on the extension in September 2014 and it was rejected by the OPSB in August 2015. UNU proceeded to file an appeal with the Ohio Supreme Court in October 2015.
Within its appeal, UNU stated the board’s decisions were unlawful and unreasonable for multiple reasons, including that the board’s decision was made even though the project developer failed to submit an application for a certificate amendment, the board failed to conduct an investigation or prepare an investigation report on Buckeye Wind’s request for the extension that complied with state law, and the board failed to hold an evidentiary hearing as required by state law.
During Wednesday’s proceedings, UNU attorney Jack Van Kley said the issue is whether changing a power siting certificate is an amendment of that certificate.
“All the parties in this case agree that the construction deadline in the certificate is a sentence in the certificate. Everybody agrees that the board modified that sentence by adding another three years of construction time to the certificate,” Van Kley said. “Yet even though the certificate’s language was changed in a substantive manner to add another three years to the life of that certificate, the Power Siting Board claims that this was not an amendment to the certificate.”
As stated by the decisions of the Power Siting Board in the past, Van Kley said the reason a construction deadline is put in the permit is so when someone asks for more time to construct the facility the board has the opportunity to determine whether the conditions put in the permit were still accurate, comport with changes and advancements in technology and whether the certificate’s conditions are still valid and protective of the public.
“In this particular case, we raised several issues that the board should look at to make that determination such as advancements in the understanding about the effects of noise, we showed that in later decisions of the board that there were ice throw setbacks imposed for safety reasons on other subsequently issued certificates that were not included in this one,” Van Kley said when asked how there was prejudice in the case. “So yes we did show that there was prejudice that affected our clients in this way because the board failed to do a staff investigation and a report on the changes that were required.”
Van Kley contended UNU showed that if a proper investigation was conducted it would have looked at issues such as if noise conditions in the certificate were still protective and whether conditions should have been added to protect the public from ice throw.
“In this court we are not contesting the extension, we are saying that an application should have been submitted for the extension and a staff investigation done to determine whether the conditions in the permit were still protective,” Van Kley said. “That’s the issue before this court – the issue before this court is not the merits of the extension itself.”
Justice Terrence O’Donnell asked if a new investigation was needed to discuss whether the conditions of the first phase of the project were the same five years later as the second phase can still move forward what UNU would gain by winning the case.
Van Kley replied that in the second phase of the project there were ice throw setbacks in the second phase of the project while these setbacks are not in the first phase of the project making the two phases inconsistent with each other.
“That could very well be one benefit of looking again at the certificate’s conditions in Buckeye I to make the two phases consistent with each other,” Van Kley said.
“So you really want another investigation on Buckeye I?” O’Donnell asked.
“It would simply be an investigation to determine whether the conditions in the certificate are still valid and not obsolete,” Van Kley said.
Following oral arguments from UNU, legal representatives from the Ohio Attorney General’s Office and EverPower spoke.
Buckeye Wind Attorney Michael Settineri said nothing has changed in the project facility from when the board approved the amendment to Buckeye I through the motion for extension meaning the same turbine models were approved, the turbines were in the same location and setbacks remain the same.
Justice R. Patrick DeWine asked if nothing has changed why did the project developer not submit the extension as an amendment.
“Regardless of what we submitted, we’d still be here today,” Settineri responded. “This case has a long history of litigation by appellants it doesn’t matter what we would’ve submitted we’d be here today and we followed the board’s interpretation of its statutes.”
Settineri stated UNU argues the delays in the project are the fault of the project developer.
“That’s not the case,” Settineri said. “You look at the history of litigation we have the Buckeye certificate litigated over two years affirmed by this court, we have the Buckeye I amendment litigated for over two and a half years affirmed 2016 by this court, we have the federal (incidental take) permit – and that’s very important that is a requirement by the board to have that in hand – it’s an incidental take permit issued by the U.S. Fish and Wildlife Services and includes a habitat conservation plan. Those are very important to have in hand.
“That’s been in litigation for over three and a half years and it’s still in district court, still in district court and at risk.”
After oral arguments in the first phase of the project were held in September 2011, the court affirmed the board’s decision in March 2012.
In September 2016, the court affirmed the board’s decision to approve an amendment to the first phase of the project after oral arguments were held last July.
Settineri also referenced the certificate which was granted in the second phase of the project which the Ohio Supreme Court affirmed in April 2016.
“It’s important to note, the appellant has fought this project every step of the way, every forum,” Settineri said. “The goal appears to be one that you could say is going to litigate this project out of existence. It’s very difficult to bring a project to construction when you have this kind of litigation.”
When asked why construction had not begun on either phase of the project, Settineri referenced the lack of an incidental take permit.
In July 2013, the U.S. Fish and Wildlife Service approved a habitat conservation plan and issued an incidental take permit which allowed for the take of a particular number of endangered Indiana bats at the proposed wind turbine project.
To offset the loss of Indiana bats, EverPower was to follow the approved habitat conservation plan designed specifically for the Indiana bat.
A U.S. District Court judge ruled against UNU’s appeal against the issuance of the permit in March 2015 prior to last August when a decision in the U.S. Court of Appeals, District of Columbia Circuit, ordered the district court’s ruling to be reversed in part and affirmed in part.
Settineri said the incidental take permit is still in federal litigation and covers both phases of the project.
Given a chance to rebut the amount of litigation, Van Kley said the reason for so much litigation is because of permitting activity.
“Buckeye Wind brought this upon itself by dividing its project up into pieces and permitting them separately,” Van Kley said. “If anybody is prejudiced by this strategy of the company it’s my clients because it costs a lot of money to litigate these cases and every time it files a new action whether it’s Buckeye I and then Buckeye II, and then consolidation of the two and now an extension it costs my client more money where those actions are done incorrectly.”
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.
Nick Walton can be reached at 937-652-1331 Ext. 1777 or on Twitter @UDCWalton.