The Ohio Supreme Court let stand a certificate to construct a 52-turbine wind farm granted to a company planning to build its second operation in Champaign County.
The Supreme Court voted 5-2 to reject a challenge to the Ohio Power Siting Board’s construction certificate issued to Champaign Wind LLC, which seeks to build the Buckeye Wind II wind farm. The Court rejected arguments by Champaign County governmental entities and a collection of citizen groups opposing the construction of the wind-powered electric-generation facility. Writing for the Court, Justice Judith L. French ruled the siting board’s order was neither unlawful nor unreasonable and that alleged errors by the board in the siting process did not affect the overall outcome.
In a dissenting opinion, Justice Sharon L. Kennedy wrote the board improperly rejected evidence of a “blade throw” at another Ohio wind farm and expert testimony on how to accurately gauge the noise from the facility that would justify further restrictions on the location of the turbines.
Second Challenge to Wind Farm Application Justice French noted that in 2012 the Court affirmed a board order to permit the construction of Buckeye Wind in Champaign County and then three months later Champaign Wind, a sister company of the Buckeye Wind developer, filed an application with the power siting board to assemble the 56-turbine Buckeye Wind II on 13,500 acres of leased land. The application was challenged by Union Neighbors United, a nonprofit organization, along with the county and three local townships.
After three weeks of hearings in December 2012, the siting board approved a certificate with 72 conditions, which led to the elimination of four turbines that did not meet the recommended property setbacks. After the board denied a rehearing to the opponents, the neighbors and the county appealed to the Supreme Court. Because the appeal was made from the board’s decision, an administrative agency, the Court had to accept it for review.
In her opinion, Justice French divides the objections of the opponents into four categories:
- Blade throw and setbacks
- Wind-turbine noise
- Requirements under the state’s public interest, convenience, and necessity law
- Procedural and evidence-related arguments.
Paulding County Blade Throw Stirs Debate Justice French explained that a “blade throw” is a potentially dangerous occurrence at wind farms and happens when a turbine blade or blade segment tears off and is thrown from the turbine. The opponents argue the siting board did not appropriately consider an April 2012 blade throw from a Paulding County wind farm where the largest piece of blade traveled 764 feet from the failed turbine.
The opponent’s request for several records from the Paulding County operators was rejected by the siting board’s administrative law judge (ALJ) after Champaign Wind announced it would not consider using the same turbine as the one that malfunctioned in Paulding. Justice French noted the ALJ allowed a report by the siting board staff on an extensive investigation about the incident and allowed the staff investigator to be cross-examined by the opponents. She also wrote the opponents did not attempt to make a narrower request for records of the incident to obtain evidence the ALJ would consider relevant.
“The board correctly found on review that these general requests were overbroad and not designed to discover evidence relevant to the proposal that was before the board. Accordingly, the board’s decision was a reasonable exercise of its discretion,” she wrote.
The opponents also argued the incident demonstrated the minimum distance setbacks approved by the board were insufficient to protect neighboring properties. Justice French noted the General Assembly has since required greater setbacks than mandated at the time the board approved the Buckeye Wind II application, which required a minimum setback of 541 feet from a neighbor’s property line and 919 feet from a neighbor’s residence.
The citizen group argued the setback should be at a minimum of 1,640 feet from a property line based on the location of smaller pieces of blade found after the Paulding County incident, and other reports of blade throws from around the world. The county argued the manufacturer’s safety manuals justified a setback of at least 1,300 feet.
Justice French wrote the Court considers the siting board to be in the best position to consider the disputed claims, and noted it considered the evidence presented by the company, the opponents, and the siting board staff. The staff disagreed with the county’s claims and suggested the proposed locations met the minimum required setbacks of most, if not all, of the wind-turbine manufacturers. Justice French indicated the setbacks were the same as those approved for the first Buckeye Wind operation and the Court “concluded that ample evidence supports the board’s approval of the setbacks.”
Noise Limit Measurements Challenged The opponents claim the permissible level of noise the turbines make at night is too high and will affect the health of wind farm neighbors. Justice French explained that Ohio does not have a law to determine how to set noise limits and the siting board has discretion for deciding how to do it.
The board adopted a maximum noise limit based on the assessment conducted by an acoustical engineer hired by Champaign Wind. The opponents claim reports by experts conclude the method for measuring the noise is inappropriate for rural areas.
Justice French wrote the Court defers to the siting board on the best way to measure and set the noise level and concluded the evidence was mixed regarding whether turbine noises cause health problems.
“The neighbors introduced studies attempting to show that turbine noise can lead to sleep deprivation and other health problems. In response, Champaign Wind presented an expert who criticized the neighbors’ evidence and concluded – based on numerous other studies – that although turbine noise may be potentially distracting or annoying to some people, exposure to turbine noise has not been scientifically demonstrated to harm humans,” she wrote.
Public Interest Measured by More Than Renewable Energy Mandate Opponents contend the facility does not meet the “public interest, convenience and necessity” prong of R.C. 4906.10(A)(6) because Ohio lawmakers have eliminated the requirement that a certain portion of the state’s electricity come from in-state renewable sources like wind. The mandate was in place when the siting board approved Champaign Wind’s application, and the company argued at the time the use of wind to meet the mandate supported the requirement that the project served the public interest.
Justice French noted the opponents claim the mandate was the “only basis” that was used to determine the project was in the public interest, but the siting board found there were other ways it met the public interest requirement, such as benefitting the environment and the availability of electricity to Ohio consumers.
Procedural Errors Not Significant The Court also found the procedural errors claimed by the opponents were not significant enough to return the matter to the board for additional consideration.
“The county and neighbors were active participants at every stage of the board proceeding. Indeed, 36 witnesses testified at the three-week hearing, with the neighbors presenting six witnesses and the county presenting four,” Justice French wrote. “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.”
Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, and William M. O’Neill joined the opinion.
Dissent Argues Critical Evidence Ignored Justice Kennedy noted that while the Court has affirmed prior siting board approvals of wind farms, this is the first time it considered the setbacks since an Ohio wind farm threw a blade, and the first case where opponents offered expert opinions challenging the correct way to calculate background noise in a rural area.
Justice Kennedy noted that while Champaign Wind agreed not to use the turbine that was involved in a blade throw in Paulding County, all of the turbine makers being considered by the company use virtually the same systems and have nearly the same risks. She explained the siting board found credible evidence that the six-and-a-half-pound piece of blade thrown 764 feet in that incident had the same force as a 40-pound block being dropped from an eight-story building.
She wrote that when the Court approved the 541-foot setback for the first wind farm in 2012, the only evidence presented showed a blade could be thrown 500 feet. Since the evidence shows a blade from a model similar to those under consideration in Champaign County can travel more than 700 feet, the minimum setbacks approved by the board are insufficient.
“In this case, the board’s continued use of the minimum property setback of 541 feet fails to minimize the adverse effect that a blade throw can have on the property of a nonparticipating owner,” she wrote. “Therefore, the setbacks approved in the certificate are unreasonable because they are against the manifest weight of the evidence.”
Regarding the turbine noise, Justice Kennedy points out there are two methods to measure background noise – Leq and L90, and the company’s expert used the Leq method even though in his opinion it was unsuitable for the project. All the acoustical experts who testified agreed the method used to calculate background noise in this case was an inappropriate method which was unsuitable for wind turbines in a rural area. The expert for Champaign Wind said he used the unsuitable method because it was the method previously used in Ohio. Because all the experts agreed an unsuitable method was used to calculate background noise, the board acted unreasonably in its continued use of an unsupported method in the face of contrary expert testimony, Justice Kennedy concluded.
“Granting a certificate, as the board did here, on the basis of an unsuitable method to calculate background noise in a rural area that permits the facility to emit a noise level that is known to exceed health limits, where the noise becomes ‘intrusive and annoying’ is not only unreasonable, it is unconscionable and unlawful,” she wrote.
Justice Paul E. Pfeifer joined her dissent.
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