Supreme Court of Ohio Clerk of Court - Filed September 11 ...supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=852651.pdf · In re Republic Wind, LLC, Case No. 17-2295-EL-BGN,

IN THE SUPREME COURT OF OHIO Greenwich Neighbors United, : Supreme Court Case No. 2017-1375 : Appellant, : On appeal from the Ohio Power Siting : Board, Case No. 15-1921-EL-BGA, In v. : the Matter of the Application of 6011 : Greenwich Windpark, LLC Regarding Ohio Power Siting Board : Its Certificate of Environmental : Compatibility and Public Need Issued in Appellee. : Case No. 13-990-EL-BGN. ______________________________________________________________________________

MERIT BRIEF OF AMICUS CURIAE MID-ATLANTIC RENEWABLE ENERGY COALITION IN SUPPORT OF APPELLEE OHIO POWER SITING BOARD

AND INTERVENING APPELLEE 6011 GREENWICH WINDPARK, LLC ______________________________________________________________________________

Jonathan R. Secrest (0075445) Christine M.T. Pirik (0029759) William V. Vorys (0093479) DICKINSON WRIGHT PLLC 150 East Gay Street, 24th Floor Columbus, Ohio 43215 Telephone: (614) 744-2932 Facsimile: (844) 670-6009 [email protected] [email protected] [email protected] COUNSEL FOR AMICUS CURIAE MID-ATLANTIC RENEWABLE ENERGY COALITION

Samuel C. Randazzo (0016386) (Counsel of Record) Matthew R. Pritchard (0088070) McNees Wallace & Nurick LLC 21 East State Street, 17th Floor Columbus, OH 43215 Telephone: (614) 469-8000 Facsimile: (614) 469-4653 [email protected] [email protected] COUNSEL FOR APPELLANT, GREENWICH NEIGHBORS UNITED Michael DeWine (0009181) Attorney General of Ohio William L. Wright (0018010) Section Chief Jodi J. Bair (0062921) (Counsel of Record) Thomas G. Lindgren (0039210) Assistant Attorneys General Public Utilities Section 30 East Broad Street, 16th Floor Columbus, OH 43215 Telephone: (614) 466-4397

Supreme Court of Ohio Clerk of Court - Filed September 11, 2018 - Case No. 2017-1375

Facsimile: (614) 644-8764 [email protected] [email protected] [email protected] COUNSEL FOR APPELLEE, THE OHIO POWER SITING BOARD Daniel C. Gibson (0080129) Sally W. Bloomfield (0022038) Dylan F. Borchers (0090690) Devin D. Parram (0082507) BRICKER & ECKLER LLP 100 South Third Street Columbus, OH 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 [email protected] [email protected] [email protected] [email protected] COUNSEL FOR INTERVENING APPELLEE, 6011 GREENWICH WINDPARK, LLC

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii 

STATEMENT OF THE FACTS .................................................................................................... 1 

I.  Introduction ...................................................................................................................... 1 

II.  Interest of Amicus Curiae MAREC ................................................................................. 3 

ARGUMENT .................................................................................................................................. 6 

I.  Statement of Issues Presented for Review ....................................................................... 6 

II.  As to GNU Proposition of Law No. I: ........................................................................... 7 

The Board acted reasonably and lawfully in applying the pre-HB 483 wind turbine setbacks to Windpark’s modified Certificate. ............................................................. 7 

A. Ohio law authorizes the OPSB to prescribe regulations associated with the change or alteration of a wind farm. ....................................................................... 9 

B. RC § 4906.20(B)(2)(b) is ambiguous, as is its inclusion of the equivocal term “amendment.” ......................................................................................................... 9 

C. OPSB’s interpretation of the term “amendment” was lawful and reasonable, and is entitled to deference. .................................................................................. 10 

D. The Ohio Constitution prohibits the retroactive application of Ohio law, preventing the state from invalidating or substantially altering the Original Certificate based on provisions contained in HB 483. .......................................... 15 

III.  As to Proposition of Law No. III:................................................................................ 16 

The OPSB’s interpretation and application of the setback waiver process outlined under Ohio law is accurate, reasonable, and lawful. ……………………….. ......... 16 

A. OPSB’s interpretation of the Waiver Provision is reasonable and is entitled to deference. .............................................................................................................. 17 

B. The application of GNU’s interpretation of the Waiver Provision would be unconstitutional. .................................................................................................... 18 

CONCLUSION ............................................................................................................................. 19 

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TABLE OF AUTHORITIES

Page

Cases 

Allen v. Smith, Inc. v. Bowers, 170 Ohio St. 398, 400, 165 N.E.2d 638 (1960) ........................... 11

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) ....... ............................................................................................................................................. 14, 15

Cleveland v. Pub. Util. Comm., 67 Ohio St.2d 446, 451, 424 N.E.2d 561, 565 (1981) ............... 15

Drovers Trust & Savings Bank v. City of Chicago, 165 N.E.2d 314, 215 (Ill. 1960) ................... 19

Gibson v. Oberlin, 171 Ohio St. (1960) ........................................................................................ 16

Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792 .......................................... 9

Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434 .................................................... 8, 10

Janas v. Town of Fleming, 382 N.Y.S.2d 394, 397 ...................................................................... 19

Lakin v. City of Peoria, 472 N.E.2d 1233 (Ill. App. 1984) .......................................................... 19

Oyortey v. State Med. Bd. Of Ohio, 2012-Ohio-6204, 986 N.E.2d 450 ....................................... 15

State ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-Ohio-3802 ................. 15

Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928) ......................... 18, 19

Statutes 

R.C. § 4906.01 ................................................................................................................................ 2

R.C. § 4906.07 .............................................................................................................................. 10

R.C. § 4906.10 ................................................................................................................................ 1

R.C. 4906.13 ................................................................................................................................... 2

R.C. § 4906.20 .............................................................................................. 1, 2, 7, 8, 9, 10, 16, 17

R.C. § 4906.20 (former version effecitve 9/30/13) ......................................................................... 7

R.C. § 4906.201 ............................................................................................................ 2, 7, 8, 9, 10

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Other Authorities 

In re Black Fork Wind Energy, LLC, Case No. 14-1591-EL-BGA (Aug. 27, 2015) ............... 3, 14

In re Hardin Wind Energy, LLC, Case No. 16-469-EL-BGA (Feb. 2, 2017)........................... 3, 14

In re Greenwich Windpark, LLC, Case No. 13-990-EL-BGN (Aug. 25, 2014) ....................... 2, 13

In re Greenwich Windpark, LLC, Case No. 15-1921-EL-BGA (Nov. 16, 2015) ............... 2, 11, 12

In re Republic Wind, LLC, Case No. 17-2295-EL-BGN (Feb. 2, 2018) ........................................ 1

In re Trish Wind Ohio, LLC, Case No. 11-757-EL-BGA (Mar. 2, 2017) ...................................... 3

Constitutional Provisions 

Ohio Const., Art. II, § 28 ...................................................................................................... 5, 8, 15

1

STATEMENT OF THE FACTS

I. Introduction

On June 4, 2014, the Ohio General Assembly (“General Assembly”) passed Ohio House

Bill 483 (“HB 483”)—a dense 820-page piece of legislation that nearly tripled the state’s

minimum wind turbine setback distance from neighboring property lines (“Property Line

Setback”), and essentially subsumed the minimum setback distance from habitable structures

(“Habitable Structure Setback”). See 2014 AM.Sub.H.B. No. 483, § 4906.20 (B)(2)(a). HB 483

also added new language to existing Ohio Revised Code (“R.C. or “Code”) provisions that

address setback distances for wind projects that seek to amend an existing certificate-to-build

issued by Appellee the Ohio Power Siting Board (“OPSB” or “Board”). Id.

HB 483 is one of the most restrictive setback laws in the nation and has proved fatal to

the state’s wind industry.1 Since its passage, OPSB has permitted zero new wind projects,2 even

as private demand for wind energy has skyrocketed.3

The HB 483 setback requirement represents just one portion of the state’s robust

regulatory framework governing wind-powered electricity generation. Companies seeking to

develop wind projects in Ohio must apply to OPSB for a “Certificate of Environmental

Compatibility and Public Need” (“Certificate”). See R.C. § 4906.10. Submission of a Certificate

application commences an extensive permitting process that necessitates a multi-million dollar

investment, includes a plethora of conditions companies must meet for purposes of approval, and

                                                            1 Ohio’s Property Line Setback is approximately 2.3 times the height of the turbine (and blade) from a neighboring property line. By comparison, California utilizes a ratio of 1; Illinois, Pennsylvania, and Wisconsin utilize a ratio of 1.1; and, Connecticut, Massachusetts, New Hampshire, New Jersey, and New York utilize a ratio of 1.5. See RUNNERSTONE, POLICY BRIEF: WIND TURBINE SETBACKS (June 13, 2017), https://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/ohio/ohio-wind-setback-policy-paper.pdf. 2 From 2008-2014, the state permitted thirteen wind projects. 3 See e.g. In re Republic Wind, LLC, Case No. 17-2295-EL-BGN, Application (Feb. 2, 2018) (a recently proposed wind project in Sandusky Ohio, which would not comply with the state’s current setback requirements. Project developers have explained to the press and OPSB that construction of the project can only occur if the state revises its setback laws).

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generally takes at least one year to complete. Once OPSB issues a Certificate, the project

developer may commence construction.

In recognition of the state’s rigorous, costly siting process, and the vesting of a

developer’s rights in the Certificate, Ohio lawmakers have established certain protections for

wind projects already approved and certificated by OPSB (“Grandfathered Projects”). Under

current law, a Grandfathered Project need only comply with the setback requirements in place

under its Certificate. See R.C. 4906.20(B)(2)(b)(i); R.C. 4906.201(B)(1).4

Intervening Appellee Greenwich Windpark, LLC (“Windpark”) is the developer of a

Grandfathered Project that received its Certificate on August 25, 2014, prior to the passage and

enactment of HB 483 (“Original Certificate”). In re Greenwich Windpark, LLC, Case No. 13-

990-EL-BGN, Order on Certificate (Aug. 25, 2014). Because HB 483 had not yet passed, OPSB

conditioned Windpark’s Original Certificate on compliance with Ohio’s pre-HB 483 wind

turbine setback law. Id. at 13.

On November 16, 2015, Windpark sought OPSB approval to add new turbine models to

the already-approved list contained in the Original Certificate. In re Greenwich Windpark, LLC,

Case No. 15-1921-EL-BGA, Application (Nov. 16, 2015). OPSB approved this minor

Certificate modification (“Modification”) and, given the project’s “grandfathered” status,

appropriately maintained application of pre-HB 483 setbacks to the project as a whole. Id.,

Order on Certificate (May 19, 2016). OPSB did the same for other Grandfathered Project

                                                            4 Ohio law distinguishes a “Major Utility Facility” of greater than 50MW operating capacity from an “Economically Significant Wind Farm,” which operates at a capacity of between 5-50MW. See R.C. 4906.01(A); R.C. 4906.13(A). However, the law treats Major Utility Facilities and Economically Significant Wind Farms exactly the same for purposes of setback requirements for current and future Certificates. See R.C. 4906.20; R.C. 4906.201.

3

developers, all of whom are members of the Mid-Atlantic Renewable Energy Coalition

(“MAREC”).5

Appellant Greenwich Neighbors United (“GNU”) unsuccessfully contested the

Modification and now submits this appeal of OPSB’s decision. In addition to advocating for an

erroneous interpretation of the law governing landowner setback waivers, GNU argues that

OPSB should retroactively impose the HB 483 setback distances any time a Grandfathered

Project makes a change (however minor) to its Certificate.

MAREC submits that contrary to GNU’s assertions, Windpark never made a change to its

Certificate. Overall, GNU’s propositions of law are deeply flawed, ignore nearly a decade of

OPSB case law precedent, and would have disastrous implications for the entire wind industry

and its participating landowners residing in Ohio.

II. Interest of Amicus Curiae MAREC

The issues presented before the Court are paramount to MAREC. MAREC is a

consortium of wind energy companies, wind turbine manufacturers, service companies, and

nonprofit organizations dedicated to the growth of renewable energy technology. Its mission is

to improve and enhance opportunities for renewable energy development in the Mid-Atlantic

region, and educate policy makers and the general public on renewable energy issues. MAREC is

very active in Ohio as it believes the state holds tremendous promise for wind energy.

Over the last decade, many MAREC member companies sought to develop projects in

Ohio. These companies invested significant time and resources not only in OPSB’s permitting

                                                            5 See, e.g., Trish Wind Ohio, LLC, Case No. 11-757-EL-BGA, Order on Certificate (Mar. 2, 2017) (OPSB maintained pre-HB 483 setbacks to a project that added turbine models to list approved in the Certificate); Hardin Wind Energy, LLC, Case No. 16-469-EL-BGA, Order on Certificate (Feb. 2, 2017) (OPSB maintained pre-HB 483 setbacks to a project that added turbine models to list approved in the Certificate); Black Fork Wind Energy, LLC, Case No. 14-1591-EL-BGA, Order on Certificate (Aug. 27, 2015) (OPSB maintained pre-HB 483 setbacks to a project that added turbine models to list approved in the Certificate).

4

process, but in raising public awareness across each of their “host” municipalities/communities,

and obtaining necessary local approvals. OPSB issued several Certificates to MAREC members

prior to the enactment of HB 483, each of which mandated compliance with the setback

requirements under current (not future) law—that is, the law in place at the time of the

Certificate application. These pre-HB 483 Certificates represent approvals to construct the

state’s Grandfathered Projects.

Many MAREC members hold Certificates for a Grandfathered Project. Their rights in

these projects were vested at the time they filed their applications, and remain vested for the

duration of their Certificates. Each of these companies invested millions of dollars in Ohio based

on their ability to meet Certificate conditions and existing statutory and regulatory requirements.

If the state indicated these companies’ rights had not vested, and the state could at any point in

the future retroactively apply more stringent wind regulations to existing projects that make only

minor adjustments, MAREC members would never have chosen to site their projects in Ohio and

would never have been able to attract the investment necessary for development. The risks

associated with the possible future application of unknown laws and regulations would be

unsurmountable.

As previously mentioned, application of the new HB 483 setbacks have made wind

project development impossible, and would kill the prospect of constructing any remaining

Grandfathered Project. As such, in addition to being unlawful, the imposition of HB 483

setbacks on already-certificated projects would unjustly result in several millions of dollars of

stranded, Ohio-based, private investment.

The prospect of unfair and uneconomic stranded investment highlights the importance of

the law’s “grandfathering” provisions. Each time lawmakers have increased the state’s statutory

5

wind setback, they have also acknowledged that existing projects are “vested.” As such,

legislators have exempted from any new requirements existing projects OPSB already approved.

The “grandfathering” concept is deeply rooted in principles of equity and justice, and in the

vesting and deprivation of individual rights—in fairness, wind developers should only be

required to comply with the laws and rules in place at the time of the Certificate application. The

notion is also supported by Ohio’s outright prohibition on retroactive application of the law,

which prevents the state from invalidating a vested right6 based on a subsequent legislative

enactment. See Ohio Const., Art. II, § 28. GNU’s arguments undermine these bedrock legal

principles.

GNU also relies on a flawed interpretation of various Code provisions governing the

OPSB siting process—provisions that have been consistently analyzed and applied by the state’s

regulators for many years, without issue. Not only would a decision in GNU’s favor overturn

nearly a decade of OPSB precedent, but more importantly, it would prevent Ohioans from

reaping the economic and environmental benefits associated with the construction of

Grandfathered Projects.

Economic analyses estimate wind project development could bring over $4.2 billion in

local economic investment statewide, creating over 13,000 Ohio-based jobs. Local governments

and schools would receive an estimated $660 million in wind project tax payments—

approximately 70 percent to schools and the remainder to local governments. Developers

typically pay rural land owners an annual lease payment per wind turbine; Ohio landowners are

anticipated to receive over $440 million in lease payments to host turbines. The energy

                                                            6 The “vested right” in this case would be an existing Certificate. 

6

generated from proposed wind projects would be able to supply the electricity needs of over

900,000 Ohio homes.7

Major corporations are increasingly seeking low-cost wind power to meet growth,

reinvestment, and sustainability goals. Fortune 500 companies, including manufacturers,

advanced technology firms, and other non-utility customers recently accounted for half of the

total renewable power purchased in the United States.8 Renewable energy has become a

difference-maker when these companies choose to expand or relocate. An adverse ruling in this

case would harm Ohio’s ability to attract these businesses and the corresponding economic

development.

In short, an adverse decision in this case would have tremendous economic consequences

not only for the wind industry, but also for Ohio and its residents. As such, MAREC submits

this Amicus Brief in support of OPSB and Windpark.

ARGUMENT

I. Statement of Issues Presented for Review

A thorough discussion of all GNU propositions of law is included in the merit briefs of

both OPSB and Windpark, which arguments are hereby incorporated into this amicus filing.

MAREC seeks to focus this Amicus Brief specifically on portions of GNU Propositions of Law I

and III.

With respect to Proposition of Law I, MAREC will address whether the Board acted

unreasonably and unlawfully by not subjecting Windpark’s Modification to the HB 483 setback

                                                            7 A Renewable America, Blowing in the Wind: Ohio’s Overly Restrictive Wind Setback Law is Putting Billions in New In-State Investment at Risk, (May, 2017), http://windenergyfoundation.org/wp-content/uploads/2017/12/ARA_Ohio_Wind_Setback_Report-5.22.17.pdf (accessed July 18, 2018). 8 In Ohio alone, Amazon, Facebook, General Motors, and The Ohio State University have all entered into power purchase agreements for wind energy.

7

requirements. MAREC will also address whether the Board had authority to interpret the

provisions contained in R.C. § 4906.20 and R.C. § 4906.201.

With respect to Proposition of Law III, MAREC will address whether the OPSB’s May

19, 2016 Order on Certificate is unreasonable, unlawful, or capriciously vague based on its

interpretation of the setback waiver requirements included in R.C. 4906.20(B)(2)(c).

II. As to GNU Proposition of Law No. I:

The Board acted reasonably and lawfully in applying the pre-HB 483 wind turbine setbacks to Windpark’s modified Certificate.

The General Assembly has twice altered the state’s minimum wind turbine setback

requirements. The first revision occurred in September of 2013 via Ohio House Bill 59 (“HB 59”),

wherein lawmakers increased the Habitable Structure Setback from 750 feet to 1,125 feet. See 2013

AM.Sub.H.B. No. 59, § 4906.20 (B)(2). HB 59 also contained “grandfathering” language that

exempted from the more restrictive setback requirement any wind project (or amendment thereto)

that OPSB had already approved and certificated. Id. The relevant (unchanged) language, as it

currently exists under R.C. 4906.20(B)(2)(b)(i) and R.C. 4906.201(B)(2), reads: “For any existing

certificates and amendments thereto . . . the [minimum setback] distance shall be seven hundred

fifty feet instead of one thousand one hundred twenty-five feet” (emphasis added) (the

“Grandfathering Provision”).

The second revision occurred in HB 483, wherein lawmakers (essentially) eliminated the

Habitable Structure Setback, but increased the Property Line Setback from “1.1 times the height of a

turbine” to 1,125 feet. See 2014 AM.Sub.H.B. No. 483, § 4906.20 (B)(2)(a). HB 483 also contained

new language that conflicts with the (unchanged) Grandfathering Provision. The new language, as it

currently exists under R.C. § 4906.20(B)(2)(b)(ii) and R.C. § 4906.201(B)(2), states the following:

8

Any amendment made to an existing certificate after the effective date of the amendment of this section by H.B. 483 of the 130th general assembly shall be subject to the setback provision of this section as amended by that act. The amendments to this section by that act shall not be construed to limit or abridge any rights or remedies in equity or under the common law. (“Amendment Provision”) (emphasis added). The Amendment Provision is located in the Code section immediately following the

Grandfathering Provision. Read together, these two provisions appear in conflict. The

Grandfathering Provision indicates that existing certificates and amendments thereto are exempt

from the more stringent HB 483 setbacks, while the Amendment Provision indicates that

amendments to existing certificates are subject to the HB 483 setbacks. GNU’s claim that the

statute is “unambiguous” is, on its face, inaccurate.

Moreover, both the Grandfathering Provision and the Amendment Provision are silent as

to the definition of an “amendment.” See Id. As GNU correctly explained in its Merit Brief, an

initial finding of statutory ambiguity allows an agency to “dig deeper than the plain meaning of

an unambiguous statute.” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8.

Regardless of statutory ambiguities, other provisions under Ohio law give OPSB explicit

authorization to prescribe regulations regarding any change or alteration of a wind farm. See

R.C. § 4906.20(B)(2). As such, OPSB is lawfully authorized to interpret the meaning of

“amendment” as the term exists in R.C. § 4906.20 and R.C. § 4906.201. Further, OPSB’s

interpretation was reasonable as it incorporated guidance from other sections of the Code and

drew from agency practice, expertise, and case law precedent governing Certificate

modifications.

Finally, MAREC notes that the Ohio constitution prohibits any retroactive application of

Ohio law. See Ohio Const., Art. II, § 28. The Court’s rightful acceptance of OPSB’s decade’s

long administrative procedure, as well as its prior decisions directly on this issue, would allow

9

Windpark’s rights to remain fully vested in its Original Certificate. As a result, the constitution

would prohibit the invalidation (or even alteration) of Windpark’s Original Certificate based on a

subsequent legislative enactment, such as HB 483.

A. Ohio law authorizes OPSB to prescribe regulations associated with the change or alteration of a wind farm. Under RC § 4906.20(B)(2) – the same section of the Code that contains the

Grandfathering Provision and Amendment Provision – the Board is required to “prescribe

reasonable regulations regarding any wind turbines and associated facilities of an economically

significant wind farm, including, but not limited to, their location, erection, construction,

reconstruction, change, alteration, maintenance, removal, use, or enlargement.” (emphasis

added). Through this language, the legislature tasked OPSB with creating parameters

surrounding the meaning of “change” or “alteration” to an existing wind project. It follows that,

at a minimum, OPSB has the authority to establish the administrative procedure surrounding the

Certification amendment process, as well as to prescribe meaning to the term “amendment.”

B. RC § 4906.20(B)(2)(b) is ambiguous, as is its inclusion of the equivocal term “amendment.” As GNU notes in its Merit Brief, Ohio law requires unambiguous statutes to be applied as

written, using the plain meaning of the applicable statutory language. Howard v. Miami Twp.

Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, ¶ 20-23. GNU uses this rule to argue that the

Board lacked authority to prescribe meaning to the statutory language “amendment to an existing

certificate.” See GNU Merit Brief, filed July 3, 2018. GNU supports its assertion with broad

claims that the “statute is not ambiguous” and, therefore, the words should be given their

“ordinary dictionary definition.” Id. at 23.

10

Contrary to GNU’s assertions, under RC § 4906.20(B)(2)(b) and R.C. § 4906.201(B), the

term “amendment” is used twice in unequivocally conflicting back-to-back Code provisions.

Both the Grandfathering Provision and the Amendment Provision are silent as to the

definition/meaning of “amendment,” or “amendment to an existing certificate.” See id. Given the

statutory ambiguity, OPSB is authorized, even under common law, to clarify the meaning of the

term “amendment,” as used in RC § 4906.20(B)(2)(b) and R.C. § 4906.201(B)(1)-(2). See

Jacobson, 149 Ohio St.3d at 400.

C. OPSB’s interpretation of the term “amendment” was lawful and reasonable, and is entitled to deference. The meaning of the term “amendment,” as used in R.C. § 4906.20 and R.C. § 4906.201,

is highly significant. As previously explained supra, aside from the construction of a handful of

Grandfathered Projects, the HB 483 setbacks have acted as a 4-year moratorium on any new

wind project development statewide. A flawed interpretation of the term “amendment” would

make the moratorium complete, wiping out the remaining Grandfathered Projects as well.

1. OPSB’s interpretation is consistent with Ohio law.

Although the General Assembly failed to explicitly define which project modifications

proposed after Certificate issuance constitute an “amendment” and necessitate a formal

amendment application process, Ohio law contains strong guidance. Specifically, R.C.

4906.07(B) states:

On an application for an amendment of a certificate, the board shall hold a hearing in the same manner as a hearing is held on an application for a certificate if the proposed change in the facility would result in any material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of such facility other than as provided in the alternates set forth in the application. R.C. § 4906.07(b) (emphasis added).

11

R.C. 4906 et seq. governs Certificate applications required for the construction of major

utility facilities, including commercial scale wind farms. The provision above clearly indicates

that Ohio law only requires an amendment process where there is a proposed change to the

facility that results in a material increase in environmental impact or a substantial change in

the location of the facility. Absent proposed changes that increase environmental impacts or

alter facility locations, no amendment application or hearing process is necessary.

Accordingly, as used in chapter 4906 of the Code, the term “amendment” is a term of art,

the precise definition of which is not necessarily limited to its plain meaning. This Court has

previously recognized that dictionaries may not be used to prescribe meaning to terms outside

the context provided in law. Allen v. Smith, Inc. v. Bowers, 170 Ohio St. 398, 400, 165 N.E.2d

638 (1960). Here, OPSB correctly determined that the Modification was not an “amendment”

and did not necessitate a formal “amendment” process, which determination is consistent with

the aforementioned guidance contained in the Code.

2. OPSB’s decades-long interpretation of “amendment” incorporates practical considerations associated with the siting of Ohio-based wind- powered electric generation facilities. As explained in its August 17, 2017 Second Entry on Rehearing (“Second Entry”),

OPSB relied on its expertise in interpreting the term “amendment,” recognizing the practicality

of wind farm siting in Ohio. In re Greenwich Windpark, LLC, Case No. 15-1921-EL-BGA,

Second Entry on Rehearing (Aug. 17, 2017), at 7. The Board and the staff of its partner agencies

consist of individuals with broad expertise in various subject matters including engineering,

agriculture, natural resources, land use planning, and geology. Id. at 7-8. The Board utilizes this

broad knowledge base and its understanding of Ohio’s electric generation siting process to apply

lawful and practical statutory interpretations.

12

As OPSB correctly stated in its Second Entry, “It would be wholly impractical for every

modification to a wind farm project, no matter how insignificant or technical, to constitute an

amendment to the certificate.” Id. at 8. The reality is that, in practice, wind project developers

do not ordinarily commence construction until several years after receiving approval (via

Certificate) from OPSB. Id. This delay is caused by a variety of factors, including, but not

limited to, market conditions, project financing, landowner leases, waivers, and property

agreements, and technological updates to project equipment. All of these issues, however minor,

must be resolved prior to construction. Id.

Throughout the time period between certification and construction, the characteristics and

circumstances of a project almost always evolve, but most of the time the changes are very

minor. Id. Minor modifications to a project after Certificate issuance can include changes in the

name of the project owner, updates to turbine technology, or updates to access road schemes. As

noted by the Board in its Second Entry, “One form of evolution that the Board sees with

frequency involves updates of wind turbine models or software that could serve to make wind

turbines more efficient and in many circumstances, less obtrusive to surrounding property

owners.” Id.

Recognizing the nature and scope of Ohio’s wind-powered electric generation facility

siting process, the Board accurately interpreted the language “amendment to an existing

certificate” to mean a “substantial change in the location of a turbine or an amendment that

results in a material increase in an environmental impact caused by a turbine that is not already

addressed by conditions placed on the certificate.” Id., Order on Certificate (May 19, 2016), at 4.

OPSB’s interpretation is entirely reasonable and clearly within the agency’s jurisdiction and

discretion. In its Second Entry, the Board declined to “adopt an interpretation that would impute

13

intent from the statute that would serve to eliminate existing wind farm projects from commerce

for minor modifications to an application that often dates back many years. If this was in fact the

intent, such intent could have been explicitly stated.” Id. In other words, OPSB recognized that

applying the fatal setbacks to every type of project modification, however insignificant, could

effectively kill wind project development statewide, a result not contemplated or intended by the

General Assembly.

3. All minor project-specific modifications that frequently occur after the issuance of a Certificate – including updates to turbine technology – are addressed in the Certificate itself and resolved through the Certificate’s conditions. OPSB Certificates unequivocally recognize that minor modifications to the project’s

equipment, design and structure are inevitable. For example, condition 5 of Windpark’s Original

Certificate states: “Within 60 days after the commencement of commercial operation, the

Applicant shall submit to staff a copy of the as-built specifications for the entire facility.” In re

Greenwich Windpark, LLC, Case No. 13-990-EL-BGN, Order on Certificate (Aug. 25, 2014).

Hence, OPSB fully anticipates that updates to facility specifications – including the structure

and design of a project’s electric substation, O&M building, and collection lines – will occur

after Certificate issuance.

Likewise, condition 9 of the Original Certificate requires Windpark to submit one set of

detailed engineering drawings for the final project design at least 30 days prior to the

preconstruction conference. Id. Taken together, conditions 9 and 6 demonstrate that the very

nature of the lengthy OPSB permitting process provides regulatory flexibility in order to address

technological advancements and the reality of the construction process. As such, OPSB has

historically allowed developers of all forms of electric generation to submit minor updates to

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their projects after Certificate issuance, but before project construction—without necessitating an

entirely new, years long amendment review process.

4. OPSB has already found that the addition of new turbine models to a Certificate does not require a formal amendment application, and therefore does not trigger the lengthier HB 483 setback distances. As previously explained, OPSB correctly determined that Windpark’s update to the

project’s turbine technology did not constitute an “amendment,” as it did not in any way alter the

project’s environmental impact or location. This determination was supported by specific OPSB

case-law precedent: the Board already considered this very question twice and ruled that updates

to turbine technology do not require a formal Certificate amendment and do not trigger the more

stringent HB 483 setbacks. See Black Fork Wind Energy, LLC, Case No. 14-1591-EL-BGA,

Order (Aug. 27, 2015); See also Hardin Wind LLC, Case No. 14-1557-EL-BGA, Order (Nov. 12,

2015). Specifically, in the Black Fork case, OPSB explained:

Based on the facts of this case, including the fact that this application does not relocate any turbines or provide any new or additional environmental impacts beyond the previously approved turbine models, this application does not constitute an amendment under R.C. 4906.201(B)(2). Therefore, the Board concludes that the conditions required by our order . . ., including the setback requirements that adhere to the provisions in R.C. 4906.20(B)(2) that were applied to the turbines prior to September 29, 2013, continue to apply to the turbines for this project. Black Fork Wind Energy, LLC, Case No. 14-1591-EL-BGA, Order at 7.

5. OPSB’s interpretation of “amendment” and its rulings in prior cases are entitled to deference. It is well-established under state and federal law that “if a statute is silent or ambiguous

with respect to [a] specific issue, the question for the court is whether the agency’s answer is

based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Natural Resources

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Defense Council, Inc., 467 U.S. 837, 843 (1984). An agency’s interpretation of a statute that it

has the duty to enforce will not be overturned unless the interpretation is unreasonable. State ex

rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-Ohio-3802, 791 N.E.2d 974, ¶

10, citing Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282,

287-88, 750 N.E.2d 130 (2001).

Moreover, a court must defer to an agency’s interpretation of a statute so long as it is

reasonable and consistent with the underlying legislative intent. Oyortey v. State Med. Bd. Of

Ohio, 2012-Ohio-6204, 986 N.E.2d 450, ¶ 17. “Long-standing administrative interpretations [of

statutes] are entitled to special weight.” Cleveland v. Pub. Util. Comm., 67 Ohio St.2d 446, 451,

424 N.E.2d 561, 565 (1981).

This well-established body of law clearly supports OPSB’s interpretation of

“amendment,” as well as its determination that updates to wind turbine technology do not

constitute the type of amendment that would trigger application of the heightened HB 483

setbacks.

D. The Ohio Constitution prohibits the retroactive application of Ohio law, preventing the state from invalidating or substantially altering the Original Certificate based on provisions contained in HB 483. OPSB’s lawful and reasonable interpretation of “amendment” allows the Board to

approve minor modifications/additions to existing Certificates without the need for an entirely

new application review process. As such, Windpark’s request to update turbine models did not

affect or impair its rights under the Original Certificate, which have vested.

In this context, application of the HB 483 setbacks to the Original Certificate would

result in the retroactive application of the law, which Ohio’s constitution explicitly prohibits.

See Ohio Const., Art. II, § 28. Under the Ohio constitution, the General Assembly may not pass

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laws that take away or impair a previously vested right, or impose new duties or obligations on

past transactions or legal actions. Id.

This Court previously considered a case concerning the issuance of building permits,

which can be analogized to the issuance of OPSB Certificates. See Gibson v. Oberlin, 171 Ohio

St. (1960). In Gibson, the Court held that “the law in effect at the time of the application for the

permit controls the issuance thereof.” Gibson at 6. The Court explained that where the property

owner complied with all legislative requirements for the permit, “he has a right to such permit,”

and subsequent legislation cannot deprive him of that right. Id.

Ultimately, the Court concluded that the property owner’s right to build became vested

“upon the filing of the application for the permit.” Id. Applying the same rationale in Gibson,

rights granted under an existing OPSB Certificate would undoubtedly vest upon the filing of an

application—and those rights should remain vested until the Certificate expires. Existing

Certificates remain subject to the law that was in place at the time of issuance. As such, the state

is prohibited from invalidating or undermining Windpark’s rights under its Original Certificate,

which are vested.

III. Proposition of Law No. III:

OPSB’s interpretation and application of the setback waiver process outlined under Ohio law is accurate, reasonable, and lawful.

While Ohio law contains minimum setback requirements, the setbacks are inapplicable if

waived by “all owners of property adjacent to the wind farm property . . . pursuant to a procedure the

board shall establish by rule.” See R.C. 4906.20(B)(2)(c) (“Waiver Provision”). The Waiver

Provision by itself is patently ambiguous because it fails to define “wind farm property,” a term that

could be interpreted in varying ways, with each interpretation having the potential to significantly

alter the provision’s practical effect. It also fails to clarify the precise meaning of “all owners.”

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Given this ambiguity and the fact that the General Assembly tasked OPSB with prescribing

applicable setback waiver guidelines, the Board appropriately interpreted the Waiver Provision and

the meaning of “all owners of property adjacent to the wind farm property.” Under OPSB’s

interpretation, the minimum setback requirement for a proposed wind turbine does not apply if the

project developer secures waivers from all owners of property adjacent to the proposed wind

turbine, whose setback is encroached by that proposed turbine.

GNU argues the Waiver Provision requires waivers from every property owner adjacent to

the parcel on which the turbine sits—including landowners whose setbacks are not encroached and

who arguably would not even have standing to bring a claim. In rule and in practice, OPSB refers

to the impacted neighbor located adjacent to the turbine, requiring waivers from landowner(s) whose

property lines are actually encroached by the turbine’s Property Line Setback. All thirteen

previously permitted and/or operational projects have operated under this standard. The statute, the

rule, and common sense support OPSB’s interpretation.

A. OPSB’s interpretation of the Waiver Provision is reasonable and is entitled to deference. The Waiver Provision renders setbacks inapplicable if “all owners of property adjacent to the

wind farm property waive application of the setback” See R.C. 4906.20(B)(2)(c) (emphasis added).

Although the General Assembly never explicitly defined “wind farm property,” OPSB has

interpreted the term in a rational manner to mean the zone around a wind turbine that reflects the

law’s setback distances.9

In the same statutory provision, the word “all” modifies “owners,” presumably to ensure that

every owner of a multi-owner property located adjacent to a proposed wind turbine would be

required to waive a setback that encroaches the minimum distance on their parcel of land. In other

                                                            9 In other words, “wind farm property” could be defined as “the total area around a wind turbine measured from the tip of its blade in all directions a distance equal to the Property Line Setback.” 

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words, the inclusion of “all” was intended to ensure that one owner of a jointly-owned property

could not override the other owners and single-handedly waive application of the minimum setback.

This has been the industry’s interpretation from the statute’s inception, has governed all projects to

date (including those that are operational), and is grounded in very simply logic: owners whose

setback is encroached have the choice to waive.

GNU appears to argue that all non-participating property owners located adjacent to the

encroached property (or even adjacent to the whole footprint of a wind farm) must waive application

of the minimum setback if a turbine encroaches upon the setback distance of any one property

owner’s parcel of land. The result of such a flawed interpretation would devastate wind project

development in Ohio because developers would need a waiver from virtually every single property

owner located in or around a wind farm—even though many owners themselves would have no

encroached setback to waive. Often these landowners would live several miles away from the

property actually encroached. This absurd result alone suggests GNU’s interpretation is misguided

and the current prevailing interpretation is correct.

B. The application of GNU’s interpretation of the Waiver Provision would be unconstitutional. Notwithstanding the nonsensical result of GNU’s interpretation and its potential to abolish

wind farm development statewide, the application of such an interpretation would be

unconstitutional. The U.S. Supreme Court has struck down state laws that require the consent of all

adjoining landowners in order to obtain zoning variances. See Washington ex rel. Seattle Title Trust

Co. v. Roberge, 278 U.S. 116 (1928). By requiring the approval of all adjacent property owners for

purposes of a setback waiver, the state “leaves the ultimate determination of whether a [wind

turbine] will be detrimental to the public welfare to the whim and caprice of neighboring property

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owners rather than to a reasoned decision by the [state].” See Lakin v. City of Peoria, 472 N.E.2d

1233 (Ill. App. 1984) (ruling that such a consent requirement is unconstitutional).

Given this legal precedent, state and federal courts alike have found such laws

unconstitutional. See e.g. Janas v. Town of Fleming, 382 N.Y.S.2d 394, 397 (N.Y. App. Div. 1976)

(zoning permit requiring consent of majority of adjoining property owners held unconstitutional

because it delegated authority to individual landowners who, by withholding their approval, may

effectively prevent the board from considering an otherwise proper application); Drovers Trust &

Savings Bank v. City of Chicago, 165 N.E.2d 314, 215 (Ill. 1960); See also Lakin v. City of Peoria,

472 N.E.2d 1233 (Ill. App. 1984); Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S.

116 (1928). It is axiomatic that when given a choice between two interpretations of a statute—one

constitutional and the other not—the interpretation consistent with constitutional law prevails.

CONCLUSION

  In essence, the outcome of this case – and in particular the Court’s decision on GNU

propositions of law I & III – comes down to the fundamental tenants of administrative authority

and statutory interpretation. GNU argues OPSB should be fully restricted in their ability to

interpret the law and establish relevant and applicable administrative procedures governing the

state’s power siting process for wind facilities. Alternatively, OPSB, Windpark, and MAREC

recognize that, under well-established state and federal law, OPSB is authorized to interpret

Code provisions, especially provisions that contain a degree of ambiguity. Likewise, OPSB is

undoubtedly authorized to prescribe the appropriate wind-powered electric generation facility

permitting process, including the procedure through which wind developers must obtain wind

turbine setback waivers.

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Further, in addition to the plain language of the Ohio Revised Code, fairness and equity

dictate that the state may not pass laws that impair vested rights. Application of the HB 483

setbacks to Windpark’s Original Certificate would undermine these fundamental legal principles.

Therefore, MAREC urges the Court to rule in favor of OPSB and Windpark.

/s/ Jonathan R. Secrest Jonathan R. Secrest (0075445) Christine M.T. Pirik (0029759) William V. Vorys (0093479) DICKINSON WRIGHT PLLC 150 East Gay Street, 24th Floor Columbus, Ohio 43215 Telephone: (614) 744-2932

Facsimile: (844) 670-6009 [email protected] [email protected] [email protected]

COUNSEL FOR AMICUS CURIAE

MID-ATLANTIC RENEWABLE ENERGY COALITION 

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CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Merit Brief Curiae Mid-Atlantic Renewable

Energy Coalition in Support of Appellee Ohio Power Siting Board and Intervening Appellee

6011 Greenwich Windpark, LLC was delivered to the following parties via email this 11th day of

September, 2018.

/s/ Jonathan R. Secrest Jonathan R. Secrest (0075445) Christine M.T. Pirik (0029759) William V. Vorys (0093479)

COUNSEL FOR AMICUS CURIAE MID-ATLANTIC RENEWABLE ENERGY COALITION 

Samuel C. Randazzo (0016386) (Counsel of Record) Matthew R. Pritchard (0088070) McNees Wallace & Nurick LLC 21 East State Street, 17th Floor Columbus, OH 43215 Telephone: (614) 469-8000 Facsimile: (614) 469-4653 [email protected] [email protected] COUNSEL FOR APPELLANT, GREENWICH NEIGHBORS UNITED Michael DeWine (0009181) Attorney General of Ohio William L. Wright (0018010) Section Chief

Daniel C. Gibson (0080129) Sally W. Bloomfield (0022038) Dylan F. Borchers (0090690) Devin D. Parram (0082507) BRICKER & ECKLER LLP 100 South Third Street Columbus, OH 43215-4291 Telephone: (614) 227-2300 Facsimile: (614) 227-2390 [email protected] [email protected] [email protected] [email protected] COUNSEL FOR INTERVENING APPELLEE, 6011 GREENWICH WINDPARK, LLC

Jodi J. Bair (0062921) (Counsel of Record) Thomas G. Lindgren (0039210) Assistant Attorneys General Public Utilities Section 30 East Broad Street, 16th Floor Columbus, OH 43215

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Telephone: (614) 466-4397 Facsimile: (614) 644-8764 [email protected] [email protected] [email protected] COUNSEL FOR APPELLEE, THE OHIO POWER SITING BOARD  

COLUMBUS 56246-1 93827v7