Amended plans for a proposed wind farm must return to the Ohio Power Siting Board and go through the board’s amendment process. (Image: Thinkstock/mj0007).

Amended plans for a proposed wind farm must return to the Ohio Power Siting Board and go through the board’s amendment process. (Image: Thinkstock/mj0007).

Altering a wind farm’s construction timeline is an “amendment,” and a proposal for a 91-turbine farm must return to state regulators for an extension, potentially subjecting the facility to stricter state rules, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 that the Ohio Power Siting Board improperly approved a request by developers of the Black Fork Wind Energy Project to extend the date to begin construction from January 2017 until January 2019. Opponents of the farm, which would be located in portions of Crawford and Richland counties, contend the siting board allowed the company to use a procedure to evade new “setback” rules imposed by the General Assembly, which would require more distance between turbines and property lines.

Writing for the Court majority, Justice Mary DeGenaro stated that under the plain, ordinary meaning of “amendment,” Black Fork’s request to extend the construction deadline listed in its power siting board certificate is an amendment. That requires the board to follow its amendment approval process. The opinion noted the board approved Black Fork’s request just weeks before the new setback law took effect, and the outcome of deadline extension request could change.

Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy, Judith L. French, and R. Patrick DeWine joined Justice DeGenaro’s opinion.

In a dissenting opinion, Justice Patrick F. Fischer wrote that the board properly interpreted state law, which led it to conclude an amendment is required only when there is a “change in the facility.” Other changes, such as a construction deadline, can be changed by a less-formal procedure, in this case, by a motion, he maintained.

Justice Terrence O’Donnell joined Justice Fischer’s dissent.

Justice Kennedy also wrote a concurring opinion, which both supported the majority’s reasoning and raised objections to Justice Fischer’s dissent. She wrote that the law applies to more than a change in a facility, noting that “the legislature did not hide substantive limitations on the amendment of a certificate in a provision that specifically addresses when ‘the board shall hold a hearing.’ ” Rather than limit the types of changes that constitute an amendment, she explained, the hearing provision “simply distinguishes a category of applications to amend a certificate—those proposing a change in the facility—in which a hearing similar to the one required to be held upon an initial application may not be required.”

Farm Faces Continued Opposition
In 2011, Black Fork filed an application to construct the wind farm covering 24,000 acres of land, with the facilities located on approximately 14,800 acres. The developers leased the land from 150 private landowners. It projected the farm will generate 200 megawatts per hour of renewable energy.

Several local political subdivisions and surrounding landowners joined the board’s proceedings. In January 2012, the board granted Black Fork a certificate to construct the wind farm. The board included several conditions, including a provision that the certificate would become invalid if the applicant had not “commenced a continuous course of construction” within five years of the approval date. The board journalized the decision on Jan. 23, 2012, giving the company until Jan. 23, 2017 to start construction.

Five landowners appealed the certificate approval to the Ohio Supreme Court, which affirmed the board’s approval in December 2013. On Sept. 12, 2014, Black Fork filed a motion with the board to extend its certificate by two years with a new commencement-of-construction date in January 2019. Black Fork argued the delay caused by the appeal and changes in the energy market hampered its ability to start construction. Surrounding landowners again opposed the motion to extend certification.

At the same time, Black Fork asked to amend its certificate to change the design of the turbines. Both actions were filed three days before the state’s newly enacted wind farm setback law took effect. The law stated that any “amendment” to an existing certificate after the effective date of the new law is subject to the new rule.

In August 2015, the board approved the changes to the certificate for the turbines. The board ruled that although Black Fork’s application might have been labeled an attempt to “amend” the certificate, the change was not actually an amendment. The board ruled that Black Fork’s farm was not subject to the new setback rules. No one appealed the decision.

Seven months later, the board approved the extension of the construction deadline. Landowners appealed the decision. In February 2017, the board affirmed its extension change and the opponents appealed to the Supreme Court, which is required to hear the case.

Court Examines Amendment Process
The majority opinion explains that R.C. Chapter 4906 governs the application process for “major utility facilities,” including wind farms. R.C. 4906.06(E) specifies how an applicant can amend a certificate, and it states that the process follows the same procedures as the initial application for a certificate. The process requires board staff to investigate the application and submit a report to the board with recommendations on whether the application meets the legal requirements.

In addition, R.C. 4906.07(B) adds that under certain conditions, a public hearing must be conducted on the application.

The Court noted the parties disagree on what is the meaning of “amendment” and whether the request for an extension is an amendment. The wind farm opponents maintain the deadline was set in a specific condition for approval of the original certificate. Changing the condition without following the amendment process was an unlawful act by the board, they claimed.

The board responded that the legislature has entrusted it with broad discretion to determine what changes are amendments. It interpreted the law to mean that an amendment is required when there is a “change to the facility.” Because changing the timeline does not change the facility, it ruled it had the authority to make the change by other means, including by approving a motion. The board argued that is has consistently since 1996 made certificate extensions through motions and that process has remained unchallenged until the Black Fork opponents raised it.

Definition of ‘Amendment” Determined
The majority opinion noted the term “amendment” is not defined in Chapter R.C. 4906 and it turned to the plain, ordinary meaning of the word. Citing two dictionaries that found the word included the process of “altering” a process, the Court concluded that changing the deadline was an amendment.

The Court stated that the board’s decision not to follow procedure is not enough for the Court to order a revision. The Court will only reverse a board order if it finds a party seeking reversal was prejudiced, the opinion stated. The majority found the Black Fork opponents were harmed in at least two ways.

The Court said the amendment process would have subjected the extension deadline to a staff report, and the opponents would have the benefit of learning from the staff report of any issue raised by the staff.

The opponents also “have shown a realistic probability of a different outcome,” had the board not approved the extension through a motion. It noted the current setback provision “may have been triggered.”

The Court stated that Black Fork has challenged the constitutionality of the law applying the new setback requirements. The opinion stated that because it was directing the board to reexamine the application through its amendment process, it would not decide the law’s constitutionality.

Dissent Finds Process Appropriate
In his dissent, Justice Fischer noted that while the term “amendment” is not defined in the law, the term should not be read in isolation. He wrote that reading the term “amendment” in the context of the certificate application process makes clear that the board had the authority to approve the extension by motion.

The dissenting justices determined that R.C. 4906.07(B) indicates a hearing on an amended certificate is required if certain changes to the facility are proposed, but that no hearing on an amended certificate is required if other changes to the facility are proposed. He maintained that this reading of R.C. 4906.07(B) led the board to correctly determine that it needed to proceed through the amendment process only when there was a “proposed change in the facility.” In this case, there is no proposed change to the facility so the board could approve the change without completing the formal amendment process.

“Here, the certificate extension does not involve a change ‘in the facility’ and the board has acted in accordance with its longstanding administrative practice, which does not conflict with the statute,” the dissenting justices found.

2017-0412. In re Application of Black Fork Wind Energy, L.L.C., Slip Opinion No. 2018-Ohio-5206.

View oral argument video of this case.

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