Most power plants, solar farms and wind farms in Ohio need approval from the Ohio Power Siting Board before they can be built and operated.
What the law says
Solar developers are appealing two recent siting board decisions in which they say regulators took a narrower view of “public interest” than they and courts previously did, effectively changing the legal standard and giving outsized weight to local opposition instead of considering the question with a state-level perspective, they say.
One case deals with the Ohio Power Siting Board’s denial of a permit to construct and operate Lightsource bp’s Birch Solar project roughly 10 miles southwest of Lima. In the other case, the board denied a permit for Vesper Energy to build and operate the Kingwood Solar project in Greene County.
The developers in both cases made changes to address specific concerns raised by siting board staff or other parties to the cases. In both cases, the board basically ruled that the projects satisfied all criteria except the public interest standard.
Lawyers for the Ohio Power Siting Board argued its rulings are entitled to a presumption of correctness on review. The board also claimed it used a “broad lens” to weigh the pros and cons of each project and make its factual findings.
Several local government groups and a local opponents’ group raised similar arguments in support of upholding the siting board decisions.
“The court should decline Kingwood’s invitation to wade into its own weighing of the evidence in this complex fact-intensive decision,” said one such brief, filed in the Kingwood Solar case by lawyers for the trustees of Miami, Cedarville and Xenia townships along with Jack Van Kley, a lawyer who represented an opponents’ group. Considering local opposition is also properly part of balancing multiple factors to determine the public interest, they wrote.
‘Public opinion is not public interest’
In Birch Solar, the board concluded there was “universal opposition from local governments and residents,” and it then held that opposition by local government bodies was “a determining component” of whether the project met the public interest criterion, the developer’s reply brief noted. That approach also violated Ohio’s statutory law and constitution by improperly delegating the board’s legal authority to local governments, the company argued.
The board also erred by focusing only on the amount of opposition. Rather, the board should have looked at evidence relating to opponents’ objections and considered how permit conditions could address them, the company’s lawyers wrote.
“[T]he Board never even assessed whether there would be any potential negative impacts to the public before deciding that the Project was not in the ‘public interest,’” said a separate brief by the Natural Resources Defense Council and a local chapter of the International Brotherhood of Electrical Workers. What matters is the evidence of a project’s impacts, not the quantity of opinions, their brief said.
In a similar vein, the power siting board unlawfully found the opposition of three adjoining townships was “controlling” in the Kingwood Solar case, the developer’s brief said. In other words, the board treated the opposition as determinative of the outcome.
“Public opinion is not public interest,” said Lindsey Workman, community affairs manager for Vesper Energy, the developer for Kingwood Solar. Ohio’s statute does not say local opposition trumps all other interests, such as economic benefits or enhanced reliability for Ohio’s energy infrastructure, she said. “That’s not how the law is written, and that’s not how the law should go.”
A 2021 law known as Senate Bill 52 did give counties the power to ban most new solar and wind projects from various areas. Among other things, the law also gives counties a chance to review new solar and wind projects that aren’t otherwise banned before they get to the power siting board. Both solar projects in the current Supreme Court cases are exempt from those parts of the law, however.
While SB 52 gave local governments “a chance to participate” in the power siting board process, the legal criteria for approval stayed the same, said Chris Tavenor, an attorney for the Ohio Environmental Council, which filed a brief in the Birch Solar case. Yet by treating local opposition as determinative, the board was “creating essentially a political process for those projects to be approved or denied, as opposed to a legal analysis,” he said.
Other briefs in the Birch Solar case underscored that opposition wasn’t universal. One brief came from a group of local solar supporters. Another explained that leaders for Auglaize County and Logan Township took no position on the project after they reached agreement with the developer on some issues.
Other potential impacts
The Natural Resources Defense Counsel wrote in its brief that “allowing the Board’s unprecedented and unreasonable decision on Birch Solar to stand will prevent the development of other well-planned renewable energy projects in Ohio.” That would reinforce continued use of fossil fuel generation, which releases greenhouse gases that drive human-caused climate change, as well as other pollution.
The natural gas industry also has a stake in the outcome, because the cases could open the door for local opposition to block power plants, pipelines and other infrastructure.
The Ohio Independent Power Producers’ brief in each case said the power siting board’s ruling “erodes a fair and predictable permitting process upon which new investment in power generating facilities in Ohio relies.” The Ohio Chamber of Commerce’s briefs also voiced a fear that the boards’ rulings inject “undue uncertainty into Ohio’s historically stable and predictable regulatory framework for building in-state power generation.”
The Ohio Supreme Court has yet to schedule oral argument in each case. It would likely take several months after that for that court to issue its decisions.
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