Champaign County presented its oral argument in the Ohio Supreme Court
A recap of the Supreme Court appeal is included below. It was tough sailing for Assistant Prosecutor Jane Napier who was challenged by the justices on why the County did not raise timely objections to issues surrounding the relocation and consolidation of the Buckeye Wind Phase I staging area into the Buckeye Wind Phase II staging area. There seemed to be some consensus that if the County did not object to the consolidation of the staging areas earlier in the process, they were not entitled to object after the fact of OPSB’s Phase II approval. Napier argued that the amount of impact on the consolidated staging area was going to be twice that which was originally planned and there would be twice the damage to roads. Because the OPSB had no requirements for Road Use Maintenance Agreements when Buckeye I was approved but did have RUMA’s by the time Buckeye II was approved, Champaign County argued a hearing was necessary in order for the OPSB to also order a RUMA for the revised Phase I project and potential road damage. The OPSB argued that EverPower people were “nice guys” and would certainly repair any Phase I damage to the standards required in Phase II, and besides, they said, the three areas of concern for the County were all improvements to the project and we should be happy.
Sitting in on the case as a substitute justice was retired Supreme Court Justice Paul Pfeifer. Pfeifer is not known to be a great admirer of wind developments. He asked Asst. Prosecutor Napier if there wasn’t some concern on the part of the County that EverPower might sell the project before it was built and the new owner might not be so agreeable on fixing damage caused by Phase I construction if there was no RUMA. Besides, he wondered, what if only Phase I was built and Phase II was never built, wouldn’t Champaign County be stuck with no recourse for road repairs?
This seems to be a timely question as we find recent news of EverPower’s owner Terra Firma’s continued deteriorating condition. The article below speculates that Terra Firma’s CEO Guy Hands may never again be able to raise money to invest in new deals; some investors like the State of Oregon have lost ½ of their investment; and “even in its new partnership deals, Terra Firma will need to arrange considerable debt financing — which is where its lawsuit’s allegations against individual Citi bankers may cast a long shadow. Bankers who work on such deals say the prospect of fraud accusations and multiyear lawsuits can make agreeing to refinance a buyout difficult.”
Since its inception, Terra Firma has held about 31 investments in its portfolio. Of those, only nine remain and one of the nine, Infinis, a wind energy company based in the UK is now rumored to be sold to the Chinese. According to the article below, Infinis is now worth about 30% less than it was when Terra Firma tried unsuccessfully to spin it off as a publicly traded company a year or so ago. We know that Terra Firma’s US wind company, EverPower, is also for sale and, if Infinis is sold, EverPower will be only one of eight holdings left in the Terra Firma portfolio. If the Chinese decide to buy it as well, maybe Justice Pfeifer’s concerns about Buckeye Wind Phase I and possible unprotected road damage may be prophetic….
High Court Hears Oral Arguments In Case Of First Wind Farm To Receive Construction Certificate From Power Siting Board
Reflective of an ongoing policy debate regarding alternative energy development in the state, the Ohio Supreme Court on Tuesday fielded oral arguments in a wind farm case pitting county officials against the Power Siting Board.
Champaign County alleges that the state regulatory panel’s approval of three amendments to a proposed wind farm’s operating certificate without a hearing was improper because the changes amount to a material increase in the environmental impact of the facility.
“The county and townships are collectively concerned with the Ohio Power Siting Board’s failure to hold necessary hearings or to establish or modify conditions which are commonplace in more recent cases and relevant to the amendment proposed,” said Jane Napier, an assistant prosecuting attorney in Champaign County.
The state and the company developing the facility ague otherwise, saying the county forfeited its right to appeal because it did not raise any of its stated claims before or during another hearing….
Ms. Napier argued that Buckeye Wind’s construction staging location, the burial of transmission lines and alterations made to roadways in the area could have a negative impact and should be subject to a hearing….
Ms. Napier said local residents did raise objections, but the county did not….
Justice French then indicated the failure to raise those objections could be a problem for the county’s case.
“Isn’t that a problem for you to say, ‘That’s what we would have done, but we didn’t?'” she asked. “So doesn’t that mean that the county has forfeited, if not waived, an objection.”
Ms. Napier disagreed with that assessment.
But Werner Margard, counsel for the attorney general’s office, furthered that argument.
“I think it’s significant to note, as you have noted, that the appellants had numerous opportunities to be able to raise this issue and either refused or failed to do so until after the board issued its order in this case,” he said.
The county argued that combining two construction staging areas into one creates an environmental impact. However, Mr. Margard said the two staging areas were already on the same parcel of land.
“We now just have one footprint of a staging area remaining,” he said.
Buckeye Wind, in a filing with the court, argued that the county forfeited its right to appeal and did not present the court with any factual evidence to back its claims. It also argued that the board’s orders were reasonably and lawfully supported by the record evidence.
“The record is replete with ample evidence that the three amendments were an indisputable improvement in the project that reduced its scope and impact and that will not result in a material environmental impact or a substantial change in all or a portion of the facility,” the company wrote in a merit brief as an intervening appellee.
The county also raised the issue of the buried utility lines. But Justice Paul Pfeifer said he views that as a positive change.
“It seems to me that this is a positive move and I would hope the Power Siting Board is nudging and pushing for that kind of infrastructure in the future,” he said.
Buckeye Wind in 2010 became Ohio’s first wind-powered generation facility to receive a construction certificate from the Power Siting Board. Statehouse News July 12, 2016