The Court approved the permitting of a 71-turbine wind farm, finding it does not pose a threat to migrating birds.

The Court approved the permitting of a 71-turbine wind farm, finding it does not pose a threat to migrating birds.

The Supreme Court of Ohio today approved the permit for construction of a 71-turbine wind farm that spans across portions of Huron and Erie counties.

In a unanimous opinion, the Supreme Court ruled the Ohio Power Siting Board appropriately issued a certificate of environmental compatibility and public need to Firelands Wind to construct windmills for the Emerson Creek Wind Farm. A group of 19 neighbors and the Black Swamp Bird Observatory had appealed the board’s decision to grant a permit to the Emerson Creek project, raising issues ranging from turbine noise to the project’s impact on migrating birds.

Writing for the Court, Justice R. Patrick DeWine explained that the Court’s standard of review for board orders is laid out by the General Assembly in a statute. R.C. 4903.13 states that the Court may reverse, modify, or vacate a board order only when, based on the record, the board’s order is “unlawful or unreasonable.” This means that the Court cannot reweigh the evidence and, generally, cannot second-guess the board’s factual determinations.

After going through each objection to the board’s order and the corresponding parts of the record, the Court stated, “We conclude that the residents and Black Swamp have not established that the board’s order was unlawful or unreasonable.”

Residents Concerned About Impact of Wind Facility
The General Assembly has authorized the construction of commercial wind farms in Ohio but has made their construction conditional on approval by the Ohio Power Siting Board. In 2019, Firelands Wind proposed to construct the Emerson Creek Wind Farm that would generate about 298 megawatts of electricity. The wind farm covers 32,000 acres of leased land, of which 84.5 acres will have wind turbines and other facilities.

Huron County, Richmond and Norwich townships, and the city of Willard supported the project. But 19 owners of property neighboring the wind farm and the Black Swamp observatory objected. In June 2021, the board approved the plan with modifications so that it would consist of 71 turbines. Firelands initially proposed to build up to 87 turbines. The board added 44 stipulations that Firelands must meet, including some during the construction and others after the wind farm begins operations.

The wind farm opponents raised several objections, including the potential for the wind farm to disrupt water supplies, create excessive noise, and cause “shadow flicker” in the homes of residents near the turbines. They also claimed that it posed a threat to various bird species.

The board staff investigated the objections and recommended that the board approve the permit, subject to 44 conditions. The board followed the recommendation, approving Firelands’ permit. The opponents appealed to the Supreme Court.

Supreme Court Clarified Standard of Review
To issue a construction permit under R.C. 4906.10(A), the board must make eight substantive determinations, the Court explained. The opponents maintained the board failed to meet the requirements in three areas, including that the facility represents the “minimum adverse environmental impact” and will serve “the public interest, convenience, and necessity.” The Court examined whether the board’s order was “unlawful or unreasonable” under R.C. 4903.13.

Justice DeWine noted that, in the past, the Court hasn’t properly distinguished between “unlawful” and “unreasonable” in the standard of review. But the two are different, he explained, because the statute says unlawful “or” unreasonable.

He went on to explain that the “unlawful” part refers to legal questions “like what is the proper interpretation of a statutory term” or whether the board followed procedures required by statutes or regulations. And because those are legal questions, the Court reviews them independently —without any sort of deference to the board.

The Court then turned to the “unreasonable” part. Justice DeWine explained that statutory criteria, like whether the facility represents “minimum adverse environmental impact” or will serve the “public interest,” are broad in nature. That broad nature inherently vests a degree of discretion in the board. So, with respect to those terms, the Court must look at whether the agency’s decision falls within the zone of reasonableness, the opinion stated.

Supreme Court Analyzed Permitting Requirements
Among the wind farm opponents’ contentions was that the board approved the plan without properly determining the impact the wind farm would have on migrating birds, particularly “passerines.” Passerines are a wide variety of small birds, mostly songbirds.

The Court noted that the board approved the permit on multiple conditions, two of which were that Firelands must monitor bird migration after the facility is constructed and have plans in place to mitigate adverse effects on birds if necessary. During the board hearings, Firelands stated it conducted numerous bird studies throughout the project area and consulted with the Ohio Department of Natural Resources (ODNR) and U.S. Fish and Wildlife Service. Firelands pointed out that all its studies were done using standards developed by the state and federal wildlife agencies.

The opinion acknowledged Firelands’ explanation that it did not conduct nighttime radar studies for passerines because ODNR has mapped the areas of the state that are at high risk for harming passerines that migrate at night. The wind farm does not fall in an area marked by ODNR as high risk, the opinion stated.

With the studies that Firelands had conducted as well as the post-construction conditions imposed by the board, the lack of nighttime radar studies wasn’t enough to “deem unreasonable the board’s determination that the project represents the minimum adverse environmental impact.”

2022-0055. In re Application of Firelands Wind, LLC, Slip Opinion No. 2023-Ohio-2555.

View oral argument video of this case.

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