Opponents to proposed 73-turbine wind farm says project threatens migrating birds.

Opponents to proposed 73-turbine wind farm says project threatens migrating birds.

Near the shores of Lake Erie in Northwest Ohio lies a prime habitat for migratory birds. It’s the proclaimed “warbler capital of the world,” and a key pit stop for hundreds of species traveling between South America and Canada.

The Oak Harbor-based Black Swamp Bird Observatory presents the “The Biggest Week in American Birding.” The groups says it’s the largest birdwatching festival in the country, drawing more than 100,000 visitors annually to the state-owned Magee Marsh Wildlife Area and nearby natural properties.

The observatory is concerned about the proposed construction of the 73-turbine Emerson Creek Wind Project slated to open to south of the Magee Marsh. The rotating windmill turbines kill birds, especially songbirds like the warbler, which travel at night, the observatory reported. The organization doesn’t want to see construction of the project without more research on the impact to birds.

Firelands Wind, the developers of Emerson Creek, acknowledges some birds and bats will be killed by turbines. The company has provided 29 studies of the migration of birds and bats, though, that it says demonstrates the project provides the “minimal adverse impact” to the region.

The Supreme Court of Ohio will consider the Ohio Power Siting Board’s approval of a certificate for Firelands Winds to operate the wind project when it conducts two days of oral arguments on Feb. 7-8.

Conservationists at Odds on Wind Power’s Impact to Migrating Birds
While the observatory, which indicates it has 17,000 members, opposes the wind farm because of the danger to birds, the Ohio Environmental Council (OEC) is standing with Firelands. Its reason – climate change.

The OEC states that as a statewide environmental and conversation organization composed of nearly 1,000 organizations, it looks at the project through the lens of “essential climate change.” Wind energy from projects like Emerson Creek reduce the use of harmful fossil fuels and increase sustainable economic development, the OEC maintains in an amicus curiae brief it filed in the case.

Both sides cite the work of the National Audubon Society to prove their points.

The observatory argues the birds need protection from the turbines because the area just north of the wind farm is designated by the Audubon Society as a “globally important area.”

The OEC counters with passages from the Audubon’s “Survival by Degrees: 389 Bird Species on the Brink” report from 2022. The report warns of the need to prevent climate change or risk the loss of hundreds of bird species.

Wind turbines can counteract the causes of climate change, the OEC brief states. The power siting board tailored the development of the wind farm to minimize the environmental impacts of the project, the group asserts.

“But the calculus should also include the stark reality that without wind farms, communities may lose the bird species they cherish the most,” the OEC concludes.

Neighboring Landowners Raise Other Concerns
The observatory isn’t the only opponent to the project. Several landowners joined the group in appealing the board’s approval to the Supreme Court. Neighboring landowners raise several objections, including noise and the threat to waterways because the turbines are located near a “karst plain.” Karsts are formed when water dissolves underground rock formations, such as limestone and gypsum, creating underground sinkholes, caves, and water drainage channels. Locating turbines in a known karst plain places the giant windmills on dangerously unstable land, the neighbors argue. Filling in the soil could alter underground water flow and contaminate drinking water wells, the opponents maintain.

The siting board states its charge isn’t to approve a plan only when it can eliminate all negative impacts to the area, which would be impossible. Instead, it has required Firelands Wind to meet 44 conditions during construction and while operating to ensure the wind farm has a minimal adverse impact on the area’s inhabitants, including those flying through.

In its approval of the project, the board stated that “one of the most contested issues in the case” has been the impact on birds and bats.

Watch Oral Arguments Online
The Court will hear In re application of Firelands Wind LLC and two other appeals on Feb. 8. On Feb. 7, the Court will consider three other cases. Arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. They are streamed live online at supremecourt.ohio.gov and on the Ohio Channel, where they are also available for later viewing.

The Court’s Office of Public Information released detailed articles today about each case, available through the case-name links.

Tuesday, Feb. 7
Eminent Domain
In Ohio Department of Transportation v. Ice House Ventures, a state agency used eminent domain to take property to improve a highway in downtown Columbus. In a settlement, the agency agreed to pay the business owners $900,000 and to secure property from the city to replace most of the parking spaces that would be lost. When the agency was unable to obtain the city property, the business owners went to court to enforce the settlement, requesting compensation for the lost parking spots. The agency and the owners disagree about whether there was a “meeting of the minds” over the parking spaces. when the settlement was signed, regarding the type of damages the owners are owed.

Speedy Trial Rights
A Lorain County man was serving three years in prison for crimes he committed in Cuyahoga County. He was also wanted for a robbery in Lorain County. When informed he would be charged in Lorain County, he followed a state law requiring him to notify the prosecutor and trial court of his intent to preserve his speedy trial rights by providing the notice to the prison warden. The law directs the warden to mail the notice to the prosecutor and court. The warden didn’t mail the notice, and after the speedy trial clock expired, a trial judge dismissed the case over the objections of the county prosecutor. In State v. Williams, the Court will consider whether the speedy trial clock is triggered only if the prosecutor and trial court receive the inmate’s notice.

Attorney Misconduct
A grievance was made against a Montgomery County attorney alleging he had an inappropriate relationship with his employee while representing the employee and her husband in legal matters. The attorney offered to represent the couple pro bono in a civil lawsuit and filed one document in the case. The attorney states in Disciplinary Counsel v. Nowicki that his romantic relationship with the woman started months after she and her husband had separated. He acknowledges that he and the woman were dating when he represented her in her divorce. The investigating office and the attorney agreed to recommend a fully stayed one-year suspension, but the state professional conduct board for attorneys and judges recommends a six-month actual suspension.

Wednesday, Feb. 8
Self-Defense Claims
Two men visiting a friend’s Toledo apartment got into a fight. One man shot the other to death and fled. Charged with felony murder, the man claimed he shot in self-defense, and he asked the trial court to dismiss the charges against him. He maintained that under a change in Ohio law, the prosecution had to prove beyond a reasonable doubt that he didn’t act in self-defense, and the state failed to prove that. The trial court declined to dismiss the case and he was convicted of all charges. In State v. Walker, the man claims that when he appealed his case, the appeals court didn’t conduct a proper sufficiency of evidence review of his self-defense claim. He argues that if such a review was conducted, he would be acquitted.

Other Acts Evidence
In 2018, a then 64-year-old Summit County man was charged with kidnapping and raping his 16-year-old relative. At the trial, the prosecution was permitted to allow two women to testify about incidents in the 1990s where the man was convicted of crimes related to accosting them. The man was found guilty. The appeals court found the other women’s testimony shouldn’t have been admitted, but that the error was harmless because the rest of the evidence proved he committed the crimes against his teenage relative. In State v. Ali, the Court will consider whether the appeals court correctly considered the impact of the “other acts evidence” before considering whether it was harmless.