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Oral Arguments: In re Application of Black Fork Wind Energy LLC, Case no. 2017-0412

This important legal challenge of the Ohio Power Siting Board decision tests whether the Board ignored state law and the conditions of its own certificate approving construction of the Black Fork wind energy facility when it granted a requested extension of the permit. A detailed description of the case is provided below and at the link appearing on this page. Oral arguments were heard on August 1, 2018 and can be watched at this link. Black Fork is proposed as a 91-turbine facility with a maximum capacity of 200 megawatts. The permit was initially issued in 2012.

Ohio Power Siting Board: State of Ohio v. Melvin Bonnell, Case no. 2017-1360

Cuyahoga County Common Pleas Court

Ann Wayt v. DHSC LLC dba Affinity Medical Center, Case no. 2017-1548 Fifth District Court of Appeals (Stark County)

Was Law Followed When State Board Extended Timeframe to Start Wind-Farm Construction? In re Application of Black Fork Wind Energy LLC, Case no. 2017-0412 Ohio Power Siting Board

ISSUES:

  1. Did the Ohio Power Siting Board amend an express, material term of a certificate to construct and operate a wind farm without complying with the statutorily required procedures for amending a certificate?
  2. Did the Ohio Power Siting Board alter, waive, or dispense with the statutorily required procedures for amending a certificate without authority?
  3. Did the Ohio Power Siting Board extend the period within which the certificate holder must “commence a continuous course of construction” without showing good cause?
  4. Did the Ohio Power Siting Board evade application of the setback requirements that took effect in state law in September 2014?

BACKGROUND:

In January 2012, the Ohio Power Siting Board approved a “certificate of environmental compatibility and public need” for Black Fork Wind Energy to build and operate a commercial wind farm in Crawford and Richland counties. The wind-farm project area encompasses approximately 24,000 acres. The facilities, consisting of up to 91 wind turbines, are designed to span approximately 14,800 acres that Black Fork has leased from 150 participating property owners. The certificate, with a five-year term ending in Jan. 23, 2017, included 80 conditions to attempt to minimize the project’s impact at the site.

A group of landowners, including the appellants in this case, contested the creation of the wind farm. On appeal, the Ohio Supreme Court in December 2013 rejected the landowners’ claims and unanimously upheld the board’s approval of the certificate.

Wind-Farm Operator Requests More Time
Black Fork filed a motion in September 2014, asking the board to approve an extension of the certificate until January 2019. The board approved the extension in 2016. Landowners Gary Biglin, Karel Davis, Brett Heffner, Alan Price, Catherine Price, Margaret Rietschlin, and John Warrington appealed to the Ohio Supreme Court, which is required to consider appeals of the board’s decisions.

The parties note that Black Fork has since submitted an “application for amendment” seeking board approval to further extend the certificate until January 2020. In December 2017, the board approved that extension.

State Law, and Certificate Conditions

R.C. 4906.04 states, “Any facility, with respect to which such a certificate is required, shall thereafter be constructed, operated, and maintained in conformity with such certificate and any terms, conditions, and modifications contained therein.” R.C. 4906.06 requires that “[t]he application [for a certificate] shall be filed not more than five years prior to the planned date of commencement of construction. The five-year period may be waived by the board for good cause shown.”

Condition 70 of Black Fork’s certificate for the wind farm states: “The certificate shall become invalid if the applicant has not commenced a continuous course of construction of the proposed facility within five (5) years of the date of journalization of the certificate.”

Landowners Argue Wind-Farm Operator Used Wrong Process to Extend Time

The property owners maintain that Black Fork’s desire to extend the certificate to January 2019 required the certificate to be amended. Black Fork wanted to change Condition 70, which set a five-year deadline for starting construction, and Black Fork must submit that type of change to the board as an “application to amend” the certificate, the landowners argue.

The board’s rules state that applications to amend a certificate must be submitted “in the same manner as if they were applications for a certificate.” State law describes certain procedures for amendments that include submitting a formal amendment application as well as mandating a board investigation and report, the landowners note. They contend that the board unreasonably and unlawfully allowed Black Fork to amend its certificate through a motion instead of following the amendment procedures in state law and the board’s rules. The board can’t alter or bypass the requirements enacted into law by the Ohio General Assembly, the landowners state.

In addition, the board didn’t find good cause for extending the certificate’s term, they argue. Although the board indicated when it extended Black Fork’s certificate to 2019 that nothing necessitated a re-examination of the public interest factors it reviewed before approving the initial certificate in 2012, the landowners counter that by failing to conduct any re-examination, the board neglected to show good cause for the extension, as required by law.

They also point to legislative changes, effective on Sept. 15, 2014, involving “setback” requirements. The statute in an earlier version established a minimum distance from wind turbines and blades to the nearest residential structure. The legislature adjusted the distance requirement, making it to the “property line of the nearest adjacent property,” instead of to the nearest residential structure. The new setback requirements applied to “any amendment made to an existing certificate after the effective date.” Because the landowners argue that Black Fork’s certificate was amended in 2016, after the law became effective, they maintain that the wind farm must abide by the new setbacks.

When Black Fork requested its latest certificate extension – to 2020, the operator submitted the request as an application for amendment, supporting the landowners’ view that the extension was an amendment subject to statutory procedures, they reason.

Power Siting Board Counters that Extension Was Procedural

The board concluded in its order that the certificate’s extension wasn’t an amendment to the certificate because it was procedural in nature. While the General Assembly didn’t define “amendment” in the context of siting board certificates, it did describe that such amendments involve changes that would result in a material increase in the facility’s environmental impact or that move any part of the facility’s location, the board argues. The board maintains that the extension involved no change to the proposed project facility or its components.

“An extension of the expiration date is not a change to the facility,” the board’s brief to the Court states.

According to the board, the proper method for a facility to ask to extend or waive certificate time limits is by motion. This approach has been the board’s long-standing, unchallenged administrative practice, it indicates.

In its order, the board stated that Black Fork provided good cause for extending the term of the certificate. The board agreed with the operator that initial appeals took two years, preventing Black Fork from starting the project because of its uncertain future. Black Fork also demonstrated that the project’s financing was delayed because of changing market conditions caused by the state’s natural gas boom. 

The board maintains that the issue whether the 2014 setbacks apply to the Black Fork project wasn’t relevant to its 2016 consideration whether to extend the certificate’s term to 2019. Those new setback requirements come into play when a facility is seeking to amend a certificate or obtain a new one. In this case, Black Fork’s request wasn’t an amendment to its certificate, the board states. It adds that the landowners have suffered no harm from the two-year extension to Black Fork’s certificate, and the board asks the Court to affirm the 2016 decision.

Wind-Farm Operator Contends Appeal Is Moot

The Court approved a request from Black Fork to intervene in this case. Black Fork’s central argument in its brief is that the appeal now is moot because, after this two-year extension was granted in 2016, Black Fork requested another extension, to January 2020, through an application for amendment, which the board granted. Black Fork believes the Court should dismiss this appeal.

Black Fork also argues that the General Assembly’s changes to the setback requirements in a biennial budget bill violated the one-subject rule for legislation mandated by the state’s constitution. Regardless, Black Fork maintains, the board determined that concerns regarding the setback requirements weren’t before it when considering the certificate extension. In addition, imposing these new requirements would be unconstitutionally retroactive because they impair Black Fork’s right to build the wind farm based on the setbacks in place when the certificate first was approved in 2012.

Certain Groups Won’t Be Permitted to Argue Case
Several other appellees named in the case didn’t submit briefs on the issues and have waived participation in oral arguments. These parties include the Richland and Crawford county commissioners; Richland County engineer; trustees of Plymouth, Sharon, and Sandusky townships; and Ohio Farm Bureau Federation.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket. Oral pleadings can be watched at this link.

Contacts

  • Representing Gary Biglin et al.: John Stock, 614.223.9300
  • Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner Margard III, 614.995.5532
  • Representing Black Fork Wind Energy LLC: Michael Settineri, 614.464.6400

Source: http://www.courtnewsohio.go...

AUG 1 2018
http://www.windaction.org/posts/48571-oral-arguments-in-re-application-of-black-fork-wind-energy-llc-case-no-2017-0412
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