Champaign County’s Union Neighbors United (“UNU”) appeared in the Ohio Supreme Court last week to argue that:
The owner of a wind turbine facility must submit an application to amend the certificate of approval to extend the construction deadline and the application to amend must trigger a board staff investigation by the Ohio Power Siting Board; and
Ohio Revised Code Chapter 4609 does not give the Ohio Power Siting Board authority to approve an extension to a construction deadline by motion even if the board finds there is no proposed change in the construction plans for the facility.
Readers are encouraged to go to https://www.ohiochannel.org/collections/supreme-court-of-ohio?0 (see link at bottom of page for the video) and watch the Court proceedings. In making its argument, UNU Attorney Jack Van Kley contended that the issue was not whether the deadline for construction should be extended but that an application and a staff investigation was required to determine if the certificate’s conditions were still protective of the public given advances in technology and research in the seven years since the certificate was issued. Van Kley specifically pointed out noise concerns and the addition of setbacks for ice throw. Ice throw setbacks were added to the Buckeye II certificate but are not required in Buckeye I.
The attorney for the OPSB told the court that the law was not clear and the meaning of an “amendment” was not defined. He argued the Court should defer to the OPSB’s judgement on whether or not the change to the certificate should be considered an amendment. OPSB argued that a change in the facility, the bricks and mortar, turbine models, etc. would require an amendment but the change in the deadline for construction was not an amendment. Justice Fisher seemed to take issue with the OPSB’s contention that only the OPSB could define an amendment when the term “amendment” is not unique to the OPSB and is used all through the law. Justice Fisher questioned why it should not be up to the court to determine whether or not the change was an amendment.
The attorney for EverPower also spoke to the case and said that UNU was simply trying to “litigate the project out of existence”. The Vorys attorney, Mike Settineri, said that the extension of the deadline to build was needed because of UNU’s litigation, including the ongoing endangered species matter in the federal court. To this point, Justice DeWine inquired that if there was no hurry to build, there would have been no harm to EverPower in submitting an amendment and having a staff review. Settineri said EverPower relied on the interpretation of the OPSB. He kept saying the facility had not changed at all. (This point will be interesting to watch when EverPower files its next amendment which will relocate the substation, change turbine models and likely include additional “changes”. )
Just before UNU’s case was heard in the Supreme Court, the OPSB denied a request for a rehearing in the Blackfork Wind case. Blackfork is located in Richland and Crawford Counties and is also represented by Mike Settineri of Vorys. The citizens in the project area also protested that OPSB did not comply with the legally mandated procedure for amending a certificate and OPSB lacked the legal authority to waive legally mandated procedures for amending a certificate. These are the same arguments made by UNU in the Supreme Court. In addition, the citizens argued that Black Fork did not show good cause to extend its certificate and that the OPSB action “illegally effects Black Fork’s evasion of the now-applicable setback requirements of R.C. 4906.20 and R.C. 4906.201.” (Meaning that if the OPSB had treated the Blackfork extension as an Amendment, it would have triggered the property line setbacks.)
Black Fork’s Vorys attorney, Settineri, argued that, because extending the certificate’s expiration date, as proposed in this case, does not change the facility, relocate turbines, or give rise to new or additional environmental impacts, no amendment of the certificate within the meaning of R.C. 4906.06 or of R.C. 4906.201(B)(2) is entailed. And, like EverPower’s argument made in the UNU case, Vorys argued that, ”since only extending ~ but not amending — the existing certificate was at issue, it was reasonable for the Board to grant the requested extension without applying new setback requirements that were established subsequent to the initial grant of Black Fork’s certificate.”
To this argument the OPSB denial states “We find no merit in the 10-2865-EL-BGN -5- intervenors’ contention that modification of the expiration date constitutes amendment of the certificate.” Whether or not the citizens of Blackfork will appeal their denial to the Ohio Supreme Court is not known but based on our experience in the Supreme Court, the Justices may be sympathetic to the argument made by UNU. Again, we encourage readers to view the 30 minute video of the proceedings to get your own impression of where the justices may stand on the issue. A ruling is not expected for several months.
In The Secret, Silent Wind Power Peril article that appears in Master Resource, a University of Virginia Psychologist writes about the health impacts of infrasound and low frequency noise (ILFN). Dr. Helen Schwiesow Parker writes “But with wind power, nearly all federal, state and local authorities gloss over, ignore or bury increasing evidence that wind turbines affect numerous people living in proximity to them. Legislators and regulators appear unwilling even to consider the possibility that some segments of our population might be extremely sensitive to infrasound, flicker, and other “emissions” from these turbines – and wind energy companies and advocates are working hard to ensure that this approach remains in effect.” This is an extremely disturbing article and a must read for everyone.
Citizens in Colorado would agree with Dr. Parker. They have gone to the local television station with reports of how they are suffering and demanding action.
At a wind industry conference in California, the CEO of EDP Renewables said “the single most important objective for the industry right now is preserving the four-year window developers have to build out their projects qualified for the full production tax credit (PTC). Preserving that window, he says, is more important than protecting the PTC phase-out, which will see the tax credit decline steadily to 40% of its value for wind farms that enter construction in 2019, before it expires again in 2020.” Lisa Linowes of Wind Action agrees. That is why she and others are pushing the Trump Administration to reverse the unlawful IRS guidance making the phase out in reality a 4 year extension of the PTC. The IRS did not follow the Administrative Procedures Act in issuing their guidance which effectively illegally extends the PTC.
Read Lisa’s Master Resource column which is the second in a series aimed at exposing abuses by the Obama administration in its effort to force wind power on the public. In this essay she examines the rules governing the wind production tax credit (the PTC)—in particular, the IRS guidance for PTC eligibility— and changes the new Trump administration might consider.
We also encourage readers to visit http://www.masterresource.org to read the next installment of The Secret, Silent Wind Power Peril: Fighting Back.
Lastly, all the media focus on the fights and “resistance” being organized by the radical left include environmental groups like Sierra Club, Environmental Defense Fund and EarthJustice. A report below indicates money is pouring into these organizations based on fear mongering. Just the left is attacking companies like Under Armour and L.L. Bean for supporting the Trump Administration. They are going after utilities and elected officials with threats and protest in support of renewable energy. We sound like a broken record, but this is a crucial time for everyone to keep in contact with your own elected officials and to recruit good people to run for office. As we are fond of saying, “You create your own future.”…