In re Champaign Wind, L.L.C.

• Decision Date: 13 April 2016
• Docket Number: No. 2013–1874.,2013–1874.
• Parties: In re APPLICATION OF CHAMPAIGN WIND, L.L.C., for a Certificate to Construct a Wind–Powered Electric Generating Facility in Champaign County, Ohio; Champaign County et al., Appellants; Power Siting Board et al., Appellees.
• Court: Ohio Supreme Court

146 Ohio St.3d 489

58 N.E.3d 1142

In re APPLICATION OF CHAMPAIGN WIND, L.L.C., for a Certificate to Construct a Wind–Powered Electric Generating Facility in Champaign County, Ohio; Champaign County et al., Appellants; Power Siting Board et al., Appellees.

No. 2013–1874.

Supreme Court of Ohio.

Submitted Dec. 16, 2015.

Decided April 13, 2016.

Kevin S. Talebi, Champaign County Prosecuting Attorney, and Jane A. Napier, Assistant Prosecuting Attorney, for appellants Champaign County and Goshen, Union, and Urbana Townships.

Van Kley & Walker, L.L.C., Jack A. Van Kley, and Christopher A. Walker, for appellants Union Neighbors United, Robert McConnell, Diane McConnell, and Julia F. Johnson.

Michael DeWine, Attorney General, William L. Wright, Section Chief, and Werner L. Margard, Assistant Attorney General, and Sarah Bloom Anderson and Summer J. Koladin–Plantz, Assistant Attorneys General, for appellee Ohio Power Siting Board.

Vorys, Sater, Seymour & Pease, L.L.P., M. Howard Petricoff, Michael J. Settineri, and William A. Sieck, for intervening appellee, Champaign Wind, L.L.C.

Chad A. Endsley and Leah F. Curtis, urging affirmance for amici curiae Ohio Farm Bureau Federation and Champaign County Farm Bureau.

Howard Learner and Trent A. Dougherty, urging affirmance for amici curiae Environmental Law and Policy Center and Ohio Environmental Council.

FRENCH

, J.

{¶ 1} Appellants, a collection of local governmental entities and residents, appeal a decision made by appellee the Ohio Power Siting Board that granted a certificate to intervening appellee, Champaign Wind, L.L.C., to construct a wind-powered electric-generation facility, or wind farm, in Champaign County. Appellants challenge various evidentiary and procedural rulings by the board and the board's ultimate determination that the proposed wind farm meets the statutory criteria for siting a major utility facility. After reviewing the record and considering the parties' arguments, we hold that appellants have established neither that the board's order is unlawful or unreasonable nor that the board's alleged errors affected the outcome of the proceeding. Accordingly, we affirm the board's order.

Facts and Procedural Background

{¶ 2} In 2012, we affirmed a board order that granted a certificate to construct the Buckeye Wind Farm in Champaign County. That was the first time we reviewed a siting decision to construct a wind farm. See In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 2012-Ohio-878, 966 N.E.2d 869, ¶ 1–3

. Less than three months after we released Buckeye Wind, Champaign Wind, a sister company of the Buckeye Wind Farm developer, filed an application to construct another wind farm in Champaign County. Champaign Wind labeled this wind farm “Buckeye Wind II.”

{¶ 3} In its application, Champaign Wind proposed to build up to 56 wind turbines, along with access roads, underground and overhead electric cables, construction-staging areas, an operations-and-maintenance facility, a substation, and up to four meteorological towers, on 13,500 acres of private land leased from about 100 participating landowners. Champaign Wind's application sought approval to install one of seven proposed turbine models, and it explained that it would make a final decision on which model to install closer to the time of construction.

{¶ 4} Appellants, Union Neighbors United, a nonprofit corporation formed to address issues relating to the placement of wind turbines in Champaign County, and three individual neighbors of the proposed wind farm (collectively, the “neighbors”), intervened to oppose Buckeye Wind II. Several local governmental entities, including appellants Champaign County and three local townships (collectively, the “county”), also intervened. Most of these entities and individuals were parties in Buckeye Wind. Id. at ¶ 4.

{¶ 5} The parties conducted significant discovery, and board staff investigated the wind farm's potential impact. The board held a three-week hearing in November and December 2012, and it later issued a 103–page opinion approving Champaign Wind's application and granting a certificate approving the construction of Buckeye Wind II. The certificate was subject to 72 conditions designed to mitigate known or foreseeable issues. Two of those conditions prohibited Champaign Wind from constructing four of its proposed turbines because their proposed location did not meet staff's recommended setbacks. This lowered the total number of turbines for the project to 52.

{¶ 6} After the board denied motions for rehearing, both the neighbors and the county appealed to this court, raising 13 propositions of law between them. Champaign Wind intervened to defend the board's order.

Analysis

{¶ 7} Under R.C. 4906.12

, we apply the same standard of review to power-siting determinations that we apply to Public Utilities Commission orders. Buckeye Wind, 131 Ohio St.3d 449, 2012-Ohio-878, 966 N.E.2d 869, at ¶ 26. Under that standard, we reverse, modify or vacate an order only when our review of the record reveals that the order is unlawful or unreasonable. R.C. 4903.13 ; see also

Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify a board decision as to questions of fact when the record contains sufficient probative evidence to show that the board's decision 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. Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. That is, we show deference to the board's specialized expertise. Id. Appellants bear the burden of demonstrating that the board's decision is against the manifest weight of the evidence or is clearly unsupported by the record. Id. We have, however, “complete and independent power of review as to all questions of law” in appeals from the board. Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997).

{¶ 8} The board has exclusive authority to issue certificates of environmental compatibility and public need for the construction, operation, and maintenance of “major utility facilities” such as the proposed wind farm at issue here. See Buckeye Wind at ¶ 2; R.C. 4906.01

, 4906.03, and 4906.13. Under R.C. 4906.10(A), the board shall not issue a certificate unless it finds that the proposed application meets eight substantive criteria. A majority of the county's and neighbors' arguments relate to procedural or evidentiary errors they allege the board committed during both discovery and the adjudicatory hearing. The county and neighbors also, however, assert that the proposed wind farm did not meet the following two criteria in R.C. 4906.10(A) : that the “facility represents the minimum adverse environmental impact” and that “the facility will serve the public interest, convenience, and necessity.” R.C. 4906.10(A)(3) and (6).

{¶ 9} To organize the county's and neighbors' various propositions of law, we have divided their arguments into four groups: (1) blade throw and setbacks, (2) wind-turbine noise, (3) the public interest, convenience, and necessity prong of R.C. 4906.10(A), and (4)

other procedural and evidentiary arguments.

I. Propositions of law relating to blade throw and setbacks

{¶ 10} Blade shear or blade throw is potentially dangerous; it occurs when a rotating wind-turbine blade or blade segment tears off and is thrown from the turbine. The term “setback” refers to the distance between a turbine and a neighbor's residence or property line. On appeal, the neighbors assert that they were improperly prevented from obtaining discovery about or presenting evidence on blade throw, and both the neighbors and the county assert that the setbacks the board approved for Buckeye Wind II are not sufficient to serve the public interest or to meet the other statutory criteria under R.C. 4906.10(A)

.

A. The neighbors' proposition of law No. 2: whether the board abused its discretion by quashing the neighbors' third-party subpoenas regarding blade-throw incidents

{¶ 11} In April 2012, two blades detached from a wind turbine at the Timber Road II Wind Farm in Paulding County, and blade debris scattered around the surrounding area. One month later, Champaign Wind filed its application in this case and listed the turbine model used at Timber Road, the Vestas V100, as one of the seven possible turbine choices for Buckeye Wind II.

{¶ 12} During discovery, the neighbors issued a subpoena duces tecum to the owner and operator of Timber Road, EDP Renewables North America, L.L.C. (“EDP”), requesting, among other things, (1) all documents relating to any blade failure on any wind turbine operated by EDP and (2) more specifically, all documents relating to the Timber Road blade-failure incident. The neighbors also issued subpoenas to two wind-turbine manufacturers—Gamesa Wind US, L.L.C. (“Gamesa”) and The General Electric Company, L.L.C. (“GE”)—because they manufactured three of the turbine models that Champaign Wind had identified as possible choices for Buckeye Wind II. The neighbors requested all documents relating to any blade-failure incident on any model of the manufacturers' turbines.

{¶ 13} After the neighbors issued these subpoenas, Champaign Wind notified the board that due to the ongoing investigation into the Timber Road blade-failure incident, it was no longer considering the Vestas V100 as a possible option for Buckeye Wind II. EDP then moved to quash the neighbors' subpoena, arguing that the neighbors sought irrelevant information because Champaign Wind had dropped the Vestas V100 from consideration for Buckeye Wind II. EDP also argued that the neighbors' subpoena was unreasonable and oppressive. Gamesa and Champaign Wind filed similar motions to quash the neighbors' third-party subpoenas. The board's administrative-law judge (“ALJ”) quashed the neighbors' entire...