Login | July 18, 2019

Modification of wind farm permit not subject to stricter location standards

DAN TREVAS
Supreme Court
Public Information Office

Published: June 25, 2019

The Ohio Power Siting Board was authorized to allow a proposed 25-turbine wind farm in Huron County to change the model of turbines it will use without subjecting the facility to stricter turbine setback requirements imposed by state lawmakers after the windfarm’s original certification, the Ohio Supreme Court recently ruled.

In a 4-3 decision, the Supreme Court determined that 6011 Greenwich Windpark’s request in 2015 to add three new models of turbines to the list of acceptable turbines for its facility did not require an amendment to the facility’s operating certificate. A 2014 state law required any wind farm amending its certificate to follow the state’s new setback requirements, which increased the distance between a turbine and a neighbor’s property line.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that the word “amendment” has a specific meaning in the state law pertaining to wind energy facilities. The siting board correctly concluded that Greenwich Windpark’s request did not require an amendment to its certificate for purposes of subjecting the facility to the stricter setback requirements, she wrote.

Justices Judith L. French, Patrick F. Fischer, and Michael P. Donnelly joined the chief justice’s opinion.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that the law clearly states “any amendment” to a certificate after September 2014 subjects a wind farm to the new setback requirements, and Greenwich Windpark’s request to amend its certificate required that the company to follow the new standards.

Justices R. Patrick DeWine and Melody J. Stewart joined Justice Kennedy’s opinion.

Windpark Seeks Revisions to Operating Certificate

In August 2014, the power siting board issued a “certificate of environmental compatibility and public need” to Greenwich Windpark, allowing it to install 25 wind turbines across 4,650 acres of land leased from 26 landowners in Huron County’s Greenwich Township, about 15 miles north of Mansfield. The facility was designed to generate 210,000 megawatts of electricity per year, and the certificate had 53 conditions imposed by the board that included allowable setback distances between the turbines and property lines.

In November 2015, Greenwich Windpark filed an application to amend its certificate because the original certificate proposed one turbine model. With the advancement of turbine technology, the company wanted to add three new models to the list of acceptable turbines for use at its wind farm. While two of the models were slightly larger than the original, the company indicated all three of the new ones would still be in compliance with the original setback terms or setback waivers obtained from the board.

Prior to Greenwich Windpark’s amendment application, state lawmakers passed new minimum setback requirements that took effect in 2014. In two areas of the law, the legislature added language stating new setback requirements apply to “[a]ny amendment made to an existing certificate” after the effective date of the law.

Greenwich Neighbors United (GNU), a group that claimed some of its members owned property near the wind farm, objected to Greenwich Windpark’s application. The siting board staff investigated the matter, and in April 2016 approved the change in turbines. GNU appealed the decision to the Supreme Court, which is required to hear this type of appeal.

Meaning of Amendment Clarified

Chief Justice O’Connor explained that lawmakers enacted R.C. 4906.20(B)(2)(b)(ii) and R.C. 4906.201(B)(2), both of which require that new setback rules apply to any amendment made to an existing certificate. While Greenwich Windpark filed an application to amend its certificate, the board concluded the request did not constitute an “amendment” under R.C. 4906.20 and R.C. 4906.201 because the legislature chose a very specific meaning of the word “amendment” for those two statutes.

The board interpreted the term “amendment” in those two divisions to apply when an amendment “results in a substantial change in the location of a turbine or an amendment results in a material increase in an environmental impact caused by a turbine that is not already addressed by conditions placed on the certificate.” Because the addition of new turbine models did not change their locations or create any new environmental impacts, the company was not amending it certificate, the board concluded.

The board noted that with delays between initial certification and construction of wind farms, turbine models are bound to change and that applying the enhanced setbacks to every type of minor change to a wind farm proposal “could prove detrimental to the originally certified project.”

The Court majority stated that the board could reasonably determine that the turbine upgrades were minor changes that did not require an amendment for purposes of applying the new turbine setback requirements.

Recent Windfarm Amendment Ruling Distinguishable

GNU argued that the Court’s 2018 In re Application of Black Fork Wind Energy decision found the “plain and ordinary meaning” of the term “amendment” applies to wind farm certificates and controls the outcome in this case. The group maintained Greenwich Windpark received an amendment to its certificate, which triggered compliance with the new setback requirements.

The majority opinion stated that while the Black Fork decision guided how the Court analyzed the Greenwich Windpark amendment application process, it does not lead the Court to conclude that a turbine change amounted to an amendment requiring application of the new turbine setback requirements under R.C 4906.20 and 4906.201.

The Court explained that the issue in Black Fork concerned the process for permitting a modification or amendment. In Black Fork, therewas a proposal to modify the operating certificate to extend the construction commencement deadline by two years. But Black Fork never filed an amendment application and therefore the change was subject to less scrutiny than Greenwich Windpark’s proposed modifications. In Black Fork, the Court determined the board did not follow the law when it approved the change as the result of a motion, not an amendment application.

Today’s opinion stated that Black Fork involved two “general statutes” that applied to a process applicable all power siting matters, while the issue in Greenwich Windpark’s case pertains to two particular statutes that have a specific definition for “amendment” as it relates to wind farms. The Court also noted that the legislature vested the board with authority to regulate wind farms.

“Our decision in Black Fork should not be interpreted as requiring that every proposed change to a wind farm’s certificate — no matter how minor or immaterial — is an amendment for purposes of applying the enhanced setback requirements,” the opinion stated. “In this case, the board adopted a reasonable and practical approach for determining when an amendment is necessary for purposes of R.C. 4906.20 and 4906.201.”

Law Applies to Any Changes, Dissent Maintained

In her dissent, Justice Kennedy wrote the General Assembly, not the Court or the power siting board, determines the public policy for the state and “has unambiguously provided that any amendment to a wind farm’s certificate shall be subject to the new setback provisions enacted in those statutes.”

The dissent pointed to the Black Fork decision where the Court looked to Black’s Law Dictionary and Webster’s Third New International Dictionary for the definition of “amendment.” The Court determined the state laws regulating wind farms used the plain and ordinary definition of “amendment” as stated in those dictionaries. The dissent stated that the Court already decided even a simple change or alternation to a document, even something as small as an alternation of wording, is an amendment.

The dissent noted that after the new setback requirements were enacted in September 2014, the legislature passed House Bill 64, which included a provision granting a 180-day grace period to allow an existing certificate to be amended without triggering the new setback requirements. The law was specifically targeted to the addition of new turbine models as long as the number of turbines and their locations did not change. The provisions in H.B. 64 indicated the General Assembly meant to apply the strict standard to a change in turbines, the dissent maintained.

“Otherwise, if upgrading the turbine models that may be used on a wind farm did not require an amendment of the certificate, there would have been no reason for the General Assembly to enact Section 749.20 of H.B. 64 as an exception to the requirement,” the dissent stated.

The case is cited 2017-1375. In re Application of 6011 Greenwich Windpark LLC, Slip Opinion No. 2019-Ohio-2406.


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