The Ohio Supreme Court today approved construction of a 14-mile natural gas pipeline through Hamilton County, rejecting objections from city officials in Reading and Blue Ash and those of a citizen’s group.

In a unanimous opinion, the Supreme Court ruled the Ohio Power Siting Board properly granted Duke Energy of Ohio a certificate required to construct a 20-inch diameter pipeline that it first announced its intention to build in 2016. The pipeline runs mostly north to south from the intersection of Hamilton, Butler, and Warren counties to Norwood.

Writing for the Court, Justice Melody J. Stewart noted the opponents correctly claimed that the siting board sidestepped its own rules, allowing Duke to submit a proposed route without also providing a “fully developed” alternative route. However, the opponents could not demonstrate they were harmed by the error, the Court concluded.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, R. Patrick DeWine, Michael P. Donnelly, and Jennifer Brunner joined the opinion, as did Ninth District Court of Appeals Judge Jennifer L. Hensal, sitting for Justice Patrick F. Fischer, who did not participate in the case.

Justice Kennedy also wrote a concurring opinion, stating the siting board “owes a duty to the citizens of Ohio to consistently comply with its own rules and procedures,” and that the board unquestionably did not comply with its rules and thereby failed the public in this case. However, she agreed that Reading and Blue Ash failed to prove they were harmed. She recognized that while agencies have some discretion in adopting rules to carry out legislative objectives, they should not be allowed to “pick and choose” which rules they will follow. She stated administrative agencies “should – and can – do better.”

Pipeline Planning Paused by Route Investigation
In March 2016, Duke notified the board it would be applying for a certificate to construct a new natural gas pipeline as part of efforts to modernize its infrastructure in the area. After deciding to reduce the pipeline size from 30 to 20 inches in diameter and lower the operating pressure, the company submitted its application to the board in January 2017.

Duke proposed two routes, a preferred route that terminated near Fairfax and an alternate route terminating near Norwood. The board staff in May 2017 submitted a report that recommended the board approve the alternate route because it presented fewer adverse effects on the roads and residents. Duke requested a stay in the proceedings, explaining it needed additional time to investigate concerns associated with sites along the alternative route.

Duke asked the board to resume proceedings in April 2018, filing a six-part supplement to its original application. Duke stated it took the additional time to meet with stakeholders along the alternate route’s path to reduce the impact of construction on municipalities and businesses. Duke agreed to continue to implement minor alignment changes during the design process. Nearly a year later, the board staff recommended approval of the revised plan for the alternate route with conditions.

In November 2019, after conducting a three-day hearing, the board granted the construction certificate, adding 41 conditions that the company had to meet.

Reading, Blue Ash, and Neighbors Opposed to Pipeline Extension (NOPE) appealed the decision to the Supreme Court, which was required to consider the case from the board.

Opponents Claim Inadequate Information Provided
Justice Stewart noted one of the primary arguments from Reading and Blue Ash was harm from Duke’s failure to provide adequate information about the alternate route -- particularly a lack specifics about interference with a Superfund toxic waste cleanup site in Reading and a large, popular park in Blue Ash.

The opinion noted Ohio law requires an applicant for a pipeline certificate to provide the information required by the board’s rules, and this board’s rules require applications to include two “fully developed” routes, one designated as preferred and the other as an alternate.  A Duke official explained the company initially focused on designing the preferred route and did not shift its focus to the alternate route until after the 2017 staff report recommending the second route.

The board noted it generally expected that Duke would have fully investigated both routes before applying for the certificate. Yet, Duke asked to pause the process, supplied the board staff with necessary information, and afforded the opponents “ample opportunity to participate in the proceedings,” the opinion noted.

The Court stated that Reading was able to obtain information through the discovery process that indicated Duke was modifying its route to avoid the Superfund site and making changes to address concerns about how the pipeline construction would impact some of Reading’s narrower roads.

Citing its 2018 In re Black Fork Wind Energy LLC decision, the Court stated that when a party objects to a board action based on the board’s failure to comply with procedural requirements, the party must explain how it is harmed. The Court noted Reading benefitted from two board staff reports about harmful issues, Duke attempted to address the Superfund site, and the board added a condition requiring Duke to avoid damaging or interfering with the site.

The Court’s opinion addressed each of the objections raised by Reading, Blue Ash, and NOPE and concluded that none warranted denying approval of the pipeline’s construction.

2020-0511. In re Application of Duke Energy, Ohio, Inc., Slip Opinion No. 2021-Ohio-3301.

View oral argument video of this case.

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