The Ohio Supreme Court opinion is still being digested – many people think it ranks among the worst decisions ever made and that it reeks of politics. The majority’s justifications for its decision would be laughable if they were not so injurious to not only Champaign County but to other communities who follow. UNU argued the project did not meet the public interest but the Court found that the generation of electricity meets the public interest even though there was no evidence of unmet demand for power. UNU argued the setbacks were inadequate and showed that the blade throw in Paulding County went further than the approved setbacks and that the legislature had even changed the setbacks to exceed what the OPSB had previously approved. The Court said that the Phase II setbacks were the same as the Phase I setbacks so they were okay despite the fact the setbacks from Phase I are now illegal for any new projects. We could go on but the analysis below gives a fairly detailed analysis….
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….
In her opinion, Justice French divides the objections of the opponents into four categories:
Blade throw and setbacks
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 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.(haha, is this a joke? the OPSB has NEVER said NO to BigWind) 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.”…
“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(remember, he now has family connection who now works for a BigWind company), 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.