In re 6011 Greenwich Windpark, L.L.C.

• Decision Date: 20 June 2019
• Docket Number: No. 2017-1375,2017-1375
• Citation: 134 N.E.3d 1157,2019 Ohio 2406,157 Ohio St.3d 235
• Parties: IN RE Application of 6011 GREENWICH WINDPARK, L.L.C., Regarding Its Certificate of Environmental Compatibility and Public Need Issued in Case No. 13-990-EL-BGN; Greenwich Neighbors United, Appellant; Power Siting Board et al., Appellees.
• Court: Ohio Supreme Court

157 Ohio St.3d 235

134 N.E.3d 1157

2019 Ohio 2406

IN RE Application of 6011 GREENWICH WINDPARK, L.L.C., Regarding Its Certificate of Environmental Compatibility and Public Need Issued in Case No. 13-990-EL-BGN; Greenwich Neighbors United, Appellant; Power Siting Board et al., Appellees.

No. 2017-1375

Supreme Court of Ohio.

Submitted March 5, 2019

Decided June 20, 2019

McNees, Wallace & Nurick, L.L.C., and Matthew R. Pritchard, Columbus, for appellant.

Dave Yost, Attorney General, William L. Wright, Section Chief, and Jodi J. Bair, Thomas G. Lindgren, and John H. Jones, Assistant Attorneys General, for appellee Ohio Power Siting Board.

Vorys, Sater, Seymour & Pease, L.L.P., Michael J. Settineri, and Daniel E. Shuey ; Bricker & Eckler, L.L.P., Daniel C. Gibson, Anne Marie Sferra, Sally W. Bloomfield, Dylan F. Borchers, and Devin D. Parram, Columbus, for intervening appellee, 6011 Greenwich Windpark, L.L.C.

Dickinson Wright, P.L.L.C., Jonathan R. Secrest, Christine M.T. Pirik, and William V. Vorys, Columbus, urging affirmance for amicus curiae, Mid-Atlantic Renewable Energy Coalition.

O'Connor, C.J. {¶ 1} Appellant, Greenwich Neighbors United ("GNU"), appeals from orders of appellee Ohio Power Siting Board approving the application of 6011 Greenwich Windpark, L.L.C. ("Greenwich Windpark"), to add three new wind-turbine models to the list of turbines suitable for Greenwich Windpark's proposed wind farm in Huron County. GNU primarily argues that in approving the proposed changes, the board should have amended Greenwich Windpark's siting certificate and should have applied the enhanced minimum turbine-setback requirements applicable to any certificate "amendment" under the current versions of R.C. 4906.20 and 4906.201, which became effective September 15, 2014.

{¶ 2} For the reasons explained below, we conclude that the board's approval of Greenwich Windpark's application did not require an amendment of its certificate, and we therefore affirm the board's orders.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 3} The Power Siting Board has exclusive authority to issue a certificate of environmental compatibility and public need for construction, operation, and maintenance of a "major utility facility," R.C. 4906.01(B)(1), such as a wind-powered electric-generation facility, also known as a wind farm or wind park. See R.C. 4906.01(D), 4906.03, and 4906.13.

{¶ 4} In August 2014, the board approved Greenwich Windpark's application to construct a wind farm, subject to 53 conditions agreed to by Greenwich Windpark and the board's staff. According to the board's order, the proposed facility will be located on 4,650 acres of land leased from 26 landowners in Greenwich Township, Huron County—about 15 miles north of Mansfield. The wind farm will consist of up to 25 wind turbines and is designed to operate at an aggregate capacity of 60 megawatts and to generate 210,000 megawatts of electricity per year. In its original application for the certificate, Greenwich Windpark proposed only one turbine model for its project.

{¶ 5} In November 2015, Greenwich Windpark initiated a new board proceeding by filing an application to amend its certificate. Greenwich Windpark's application noted that turbine technology had advanced since it initially requested a certificate, and it therefore sought to add three new turbine models to the list of acceptable turbines for its wind farm.¹ Greenwich Windpark's application also noted that two of the new turbine models were slightly larger than the certified model but none of the turbine locations would change and that all new models would either comply with the minimum setbacks in place when the board originally issued Greenwich Windpark's certificate or the turbines were subject to setback waivers that Greenwich Windpark had obtained in the certification case.

{¶ 6} Although GNU had not participated in the original certification proceeding, GNU intervened in the newly filed matter. According to GNU, some of its members own property near the proposed wind farm and it filed comments and objections opposing Greenwich Windpark's application.

{¶ 7} The board's staff investigated Greenwich Windpark's application and, in April 2016, issued a report recommending approval of the proposed turbine changes. In May 2016, the board approved Greenwich Windpark's application without holding a hearing, and in August 2017, the board denied GNU's request for a rehearing.

{¶ 8} GNU thereafter commenced this appeal, raising six assignments of error. We granted Greenwich Windpark's motion for leave to intervene to defend the board's orders.

151 Ohio St.3d 1422, 2017-Ohio-8365, 84 N.E.3d 1061. We later dismissed GNU's second assignment of error. 152 Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876.

II. STANDARD OF REVIEW

{¶ 9} We will reverse, modify, or vacate an order of the Power Siting Board "only when our review of the record reveals that the order is unlawful or unreasonable." In re Application of Champaign Wind, L.L.C. , 146 Ohio St.3d 489, 2016-Ohio-1513, 58 N.E.3d 1142, ¶ 7 ; see R.C. 4906.12 (incorporating the standard of review from R.C. 4903.13 ). We will not reverse or modify a board's order as to questions of fact when the record contains sufficient probative evidence to show that the order was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Champaign Wind at ¶ 7. As to questions of law, we have complete and independent power of review in appeals from the board. Id.

III. ANALYSIS

A. Proposition of law No. 1: whether the board acted unlawfully or unreasonably by refusing to subject Greenwich Windpark's application to the current minimum setback requirements in R.C. 4906.20 and 4906.201

1. The relevant statutory framework and the board's orders

{¶ 10} The primary issues on appeal involve the interpretation of R.C. 4906.20 and 4906.201 —power-siting statutes applicable only to wind farms. R.C. 4906.20 applies to an "economically significant wind farm," which is a wind farm capable of operating at an aggregate capacity between 5 and 50 megawatts, R.C. 4906.13(A). R.C. 4906.201 applies to a wind farm capable of operating at an aggregate capacity of 50 megawatts or more, such as Greenwich Windpark's project. R.C. 4906.201(A), however, incorporates the "minimum setback requirements" established by the board under R.C. 4906.20(B)(2).

{¶ 11} In 2014—after the board had originally certified Greenwich Windpark's wind farm—the legislature amended R.C. 4906.20 and 4906.201 to significantly increase the minimum turbine-setback requirements for new wind-farm certificates. In addition, the legislature enacted R.C. 4906.20(B)(2)(b)(ii) and 4906.201(B)(2), both of which state that those new setback requirements apply to "[a]ny amendment made to an existing certificate" after the effective date of the new enhanced setbacks—that is, September 15, 2014. The legislature also instructed in both statutes, however, that the amendments to R.C. 4906.20 and 4906.201 "shall not be construed to limit or abridge any rights or remedies in equity or under the common law."

{¶ 12} In November 2015, Greenwich Windpark filed an application seeking to amend its certificate to, as described above, add three new turbine models.

Although the board approved the application, the board concluded that Greenwich Windpark's requested turbine changes did not constitute an "amendment" for purposes of R.C. 4906.20 and 4906.201. According to the board, the term "amendment" in those two statutes has a very specific meaning based on the way the legislature chose to word the statutes:

The Board interprets the amendment addressed in R.C. 4906.20 and 4906.201 to apply specifically in those instances where 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.

Power Siting Bd. No. 15-1921-EL-BGA, 2016 WL 2991719, *4 (May 19, 2016).

{¶ 13} Relying on that definition, the board concluded that Greenwich Windpark's "application [did] not constitute an amendment that triggers the enhanced setbacks under R.C. 4906.201(B)(2)," because the application did not relocate any turbines or create any new environmental impacts beyond those already addressed in the original certificate. Id. at *8.

{¶ 14} In its entry denying GNU's application for rehearing, the board further clarified its interpretation of R.C. 4906.20 and 4906.201. Because those statutes do not define the meaning of the phrase "[a]ny amendment made to an existing certificate," the board noted that it "used its discretion and expertise to determine what qualifies" as an amendment, in the same way it must create parameters for undefined terms when fulfilling its statutory duty to " ‘prescribe reasonable regulations regarding any wind turbines * * *, including, but not limited to, their * * * change , alteration , maintenance, removal, use, or enlargement.’ " (Emphasis added by the board.) Power Siting Bd. No. 15-1921-EL-BGA, 2017 Ohio PUC LEXIS 726, *12-13 (Aug. 17, 2017), quoting R.C 4906.20(B)(2). "[P]roject changes that are adequately addressed by existing certificate conditions," the board concluded, "do not require an amendment to the original certificate." Id. at *16. To support its interpretation, the board noted that construction of wind farms is often delayed for years after initial certification, id. at *15, and that a change it sees "with frequency" involves updates to turbine models "that could serve to make wind turbines more efficient and in many circumstances, less obtrusive to surrounding property owners," id. at *16. Applying the enhanced setbacks to every type of minor change "could prove detrimental to the originally certificated project." Id. The board noted that "[n]ot every proposed change to a major utility facility...