The Court approved a permit for a six-turbine offshore wind-powered electric-generation facility located about 10 miles from the shores of Lake Erie.

The Court approved a permit for a six-turbine offshore wind-powered electric-generation facility located about 10 miles from the shores of Lake Erie.

The Supreme Court of Ohio today approved the permit to construct North America’s first freshwater offshore wind-powered electric-generation facility.

In a 6-1 decision, the Supreme Court found the Ohio Power Siting Board appropriately granted a certificate of environmental compatibility and public need to Icebreaker Windpower.

The company proposes to construct a six-turbine wind farm about 10 miles off the coast of Lake Erie near Cleveland. The project has been billed as a small-scale “demonstration project” to test the viability of offshore wind farms in Lake Erie and the other Great Lakes.

Opponents to the project challenged the Power Siting Board’s decision, primarily arguing that the state has not received enough data on whether the facility poses significant harm to birds and bats. Writing for the Court majority, Justice Jennifer Brunner explained that the board collected the necessary research to allow Icebreaker to begin construction, while also requiring far more data before the company can operate the turbines.

“Rather than requiring Icebreaker to resolve those matters before issuing the certificate, the board determined that the conditions on its grant of the application were sufficient to protect birds and bats and to ensure that the facility represented the minimum adverse environmental impact,” Justice Brunner wrote.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined Justice Brunner’s opinion.

In a dissenting opinion, Justice Sharon L. Kennedy explained that the board held the project to a lesser degree of scrutiny because the proposed wind farm is a first-of-its-kind demonstration project. However, state law does not make exceptions for demonstration projects, and the board failed to make the required findings regarding the environmental impacts of the proposed facility, including its impact on aquatic and avian wildlife, before issuing the certificate, she stated. If more relaxed standards should apply to demonstration projects, that decision must be made by the legislature, she wrote.

Board Considered Power Project
In 2017, Icebreaker sought a certificate from the Power Siting Board to build wind turbines on about 4.2 acres of submerged land located 8-to-10 miles from the Lake Erie shore. The company signed a lease with the Ohio Department of Natural Resources (ODNR) to operate in Lake Erie. Its projected electric-generation capacity qualified the facility as an “economically significant wind farm” under Ohio law and required it meet certain requirements. R.C. 4906.10(A) directs the board to make eight significant findings before approving a certificate, including the “nature of the probable environmental impact” of the facility, and that the “facility represents the minimum adverse environmental impact.”

Several interested parties participated in the board’s proceedings, including residents living near the Lake Erie shore. The residents claimed the board could not issue a certificate because Icebreaker had not provided adequate evidence to determine the wind farm’s probable impact on birds and bats. The residents also argued the project would violate the “public-trust doctrine,” which requires the state to maintain the use of Lake Erie for the benefit of the people of Ohio.

The board first issued a certificate to Icebreaker in May 2020. Because of the uncertainty of the wind turbines’ impact on birds and bats, the board required the turbine rotors be turned off from dusk to dawn for the majority of the year until research was completed on the potential impact to wildlife at night. Icebreaker objected to the conditions and asked the board to reconsider.

In October 2020, the board removed the shutdown requirements, and replaced them with new conditions, requiring Icebreaker to continue to monitor wildlife activity prior to and during construction to assess the possible impacts. The company was ordered to incorporate available technologies to minimize harm. The board stated it could reimpose the nighttime shutdowns if the data showed significant harm to wildlife once the turbines were operating.

Two residents of the lakeshore village of Bratenahl appealed the board’s decision to the Supreme Court, which is required to hear such cases.

Supreme Court Assessed Board’s Decision
The Court reviewed the board’s claim that it thoroughly considered the probable environmental impact of the project and that its findings met the requirements of state law. The Court noted the board cited many scientific studies about birds and bats flying near and off the shores of Lake Erie. The board also cited evidence that the location of the turbines would not likely impact the habitat of nesting birds and roosting bats because of its distance from the shoreline. The board relied on several studies of bird fatalities at 42 land-based wind farms in the Great Lakes region and bat fatalities at 55 land-based wind farms, and concluded the Icebreaker project would present a low risk to wildlife.

Justice Brunner wrote that when appealing the board’s decision, the residents had to demonstrate the board’s decision was “so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty.” The Court ruled that residents did not provide enough evidence to justify overturning the board’s decision.

The Court noted the nature of the demonstration project does limit the amount of available information about the danger the wind farm poses to wildlife. However, the Court stated the lack of precise knowledge should not prevent the board from issuing the certificate if conditions are added that require the company to continue to study and report its environmental impact findings.

“We have upheld the board’s practice of imposing conditions on wind-farm construction certificates,” the opinion stated, referring to the Court’s 2012 opinion In re Application of Buckeye Wind LLC.

Board Properly Rejected Public Trust Argument
The residents also argued the board violated the public-trust doctrine and failed to determine that the project met the law’s requirement to “serve the public interest, convenience, and necessity.” The residents maintained the board – acting on behalf of the state – relinquished ownership interests in Lake Erie to the benefit of a private, for-profit company.

The opinion explained the public-trust doctrine imposes a duty on the state to protect the natural resources and navigable waters of Lake Erie for the public. The duty to enforce the public-trust doctrine is expressly designated to ODNR, the Court stated, and not a duty of the siting board.

Contrary to the residents’ argument, the General Assembly has clearly allowed private and public uses of Lake Erie with the permission of ODNR, the opinion stated. The board correctly determined it had no authority to address the residents’ public-trust doctrine argument, the Court concluded.

Board Failed to Make Findings Needed to Issue Certificate, Dissent Stated
In her dissent, Justice Kennedy maintained that the board failed to make the statutory findings required to grant a certificate for the proposed wind farm.

Under R.C. 4906.10(A)(2), the board must determine the nature of the probable environmental impact of the project. Citing Webster’s Third New International Dictionary, Justice Kennedy wrote that something is “probable” when it is “based on or arises from adequate fairly convincing though not absolutely conclusive intrinsic or extrinsic evidence or support.”

The dissent noted that the most contentious issue before the board was the proposed wind farm’s impact on bird and bats. But although the board was tasked with determining the probable environmental impact of the project, it had found that the actual impact on birds and bats “is still unknown.” Without data about the number and density of birds and bats passing through the project area, the board could not know the likely impact, the dissent stated. And if the board does not determine the probable environmental impact of the proposed wind farm, it cannot determine that project represents the minimal adverse environmental impact as required by the statute.

“The board cannot simply wait and see what evidence will be generated after it grants a certificate. Rather, the board has a gatekeeping role of ensuring that the environmental impacts of a facility are known and justified by public need before the facility is constructed,” Justice Kennedy wrote.

The dissent noted that it “may make good policy to loosen the rules for an ‘unprecedented’ project that will advance science concerning wind energy,” but if the law needs to be changed for demonstration projects, “that role belongs to the General Assembly,” the dissent concluded.

2021-0153. In re Application of Icebreaker Windpower Inc., Slip Opinion No. 2022-Ohio-2742

View oral argument video of this case.

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