In re Application of Champaign Wind, L.L.C. (Slip Opinion)
146 Ohio St.3d 489, 58 N.E.3d 1142, 2016 Ohio 1513 (2016)
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Rule of Law:
An Ohio Power Siting Board (OPSB) order granting a certificate for a major utility facility will only be reversed, modified, or vacated if it is found to be unlawful or unreasonable, with significant judicial deference given to the board's specialized expertise on factual matters, and appellants bearing the burden of demonstrating prejudice from any errors.
Facts:
- In 2012, the Ohio Supreme Court affirmed an OPSB order that granted a certificate to construct the Buckeye Wind Farm in Champaign County.
- Less than three months after the Buckeye Wind decision, Champaign Wind, L.L.C. (a sister company to the Buckeye Wind Farm developer) filed an application to construct another wind farm, 'Buckeye Wind II,' in Champaign County.
- Champaign Wind proposed to build up to 56 wind turbines, along with access roads, electric cables, and other facilities, on 13,500 acres of private land leased from approximately 100 participating landowners.
- Union Neighbors United (a nonprofit corporation), three individual neighbors, Champaign County, and three local townships intervened to oppose the Buckeye Wind II project.
- In April 2012, two blades detached from a wind turbine at the Timber Road II Wind Farm in Paulding County, scattering blade debris across the surrounding area.
- Champaign Wind initially listed the Vestas V100 turbine model (the model used at Timber Road) as one of seven possible choices for Buckeye Wind II, but later withdrew it from consideration due to an ongoing investigation into the Timber Road blade-failure incident.
- Acoustical engineers for both Champaign Wind and the intervening opponents agreed that the Leq method for calculating background noise was unsuitable for rural areas and that the L90 method was the generally accepted metric.
- The World Health Organization (WHO) determined that a nighttime sound level of 40 dBA is the threshold at which sound becomes intrusive and annoying.
Procedural Posture:
- Champaign Wind, L.L.C. filed an application with the Ohio Power Siting Board to construct the Buckeye Wind II wind farm.
- Union Neighbors United (a nonprofit), three individual neighbors, Champaign County, and three local townships intervened in the proceedings to oppose the application.
- The board held a three-week adjudicatory hearing in November and December 2012 to consider the application.
- The board issued a 103-page opinion approving Champaign Wind’s application and granting a certificate of environmental compatibility and public need, subject to 72 conditions, which reduced the total number of approved turbines to 52.
- The board subsequently denied motions for rehearing filed by both the neighbors and the county.
- Both the neighbors and the county appealed the board's order to the Ohio Supreme Court, raising 13 propositions of law.
- Champaign Wind intervened in the appeal before the Ohio Supreme Court to defend the board’s order.
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Issue:
Did the Ohio Power Siting Board's decision to grant a certificate to Champaign Wind, L.L.C. for the construction of a wind-powered electric-generation facility constitute an unlawful or unreasonable order, or were the board's alleged evidentiary and procedural errors prejudicial to the appellants?
Opinions:
Majority - French, J.
No, the Ohio Power Siting Board's decision to grant a certificate for the construction of the wind farm was not unlawful or unreasonable, and the appellants have not demonstrated that any alleged errors affected the outcome of the proceeding. The Supreme Court applies a deferential standard of review to OPSB orders, reversing only if the order is unlawful or unreasonable, and defers to the board's factual findings unless they are manifestly against the weight of the evidence. Appellants bear the burden of demonstrating such flaws or that errors prejudiced them. The board did not abuse its discretion by quashing overbroad third-party discovery requests related to general blade-throw incidents or the Timber Road incident, as these were either too broad, irrelevant to the specific proposed project, or the appellants failed to demonstrate prejudice given that some evidence on Timber Road was admitted. Similarly, limitations on cross-examination and exclusion of the Caithness database were not prejudicial or arbitrary. The board's approval of the regulatory minimum setbacks was reasonable and supported by sufficient evidence, including testimony that blade throw is rare, the implementation of safety measures, and the board's assessment of the unreliability of some of the appellants' evidence on greater setback needs. Regarding turbine noise, the board's adoption of Champaign Wind’s proposed nighttime noise limit and methodology was reasonable, as the board has broad discretion in the absence of statutory guidance on methodology, and the evidence on health impacts was mixed. Any inconsistency in discovery on noise complaints did not constitute reversible error without a showing of prejudice, and setting noise limits at residences rather than property lines was also within the board's discretion. The board’s refusal to reopen the hearing to admit a new report on low-frequency noise was not prejudicial. The board's finding that the project served the public interest, convenience, and necessity was based on multiple factors, not solely on a now-repealed in-state renewable energy mandate, allowing the court to avoid a constitutional question. Finally, the decommissioning bond calculation was within the board's broad discretion, and the board did not abuse its discretion by prohibiting discovery of draft applications or by its evidentiary rulings during cross-examination, as the appellants failed to provide sufficient record support or demonstrate due process violations.
Dissenting - Kennedy, J.
Yes, the Ohio Power Siting Board's decision to grant the certificate was unreasonable and unlawful because the approved blade-throw setbacks and the method used to calculate background noise are unsupported by the record and against the manifest weight of the evidence. The minimum blade-throw setback of 541 feet from a property line is inadequate and unlawful, especially considering that a blade piece from a similar turbine model at the Timber Road II Wind Farm traveled 764 feet, and all turbines under consideration share similar risks and safety features. The General Assembly mandates that facilities represent the 'minimum adverse environmental impact' (R.C. 4906.10(A)(3)), a standard not met by the approved setbacks. Furthermore, the board’s continued reliance on the Leq method to measure background noise in a rural area is unlawful and unreasonable. All acoustical experts, including Champaign Wind’s own expert, testified that the Leq method is 'unsuitable' for rural wind farm noise assessment and that the L90 method is the appropriate standard. The board's staff member supervising the noise report lacked acoustical engineering expertise, therefore, deference to the board's conclusion is misplaced. The Leq method inflates background noise levels, leading to an approved noise limit of 44 dBA, which 16 of the 52 turbines are predicted to exceed, compared to a 35 dBA limit if the acoustically sound L90 method were used. This 44 dBA limit surpasses the World Health Organization's 40 dBA threshold for intrusive noise, thus violating the statutory mandate for 'minimum adverse environmental impact.' A post-certification complaint resolution process cannot rectify a fundamental failure to comply with statutory requirements prior to issuing the certificate.
Analysis:
This case strongly affirms the principle of judicial deference to administrative agencies, particularly the Ohio Power Siting Board, in complex technical matters related to utility siting. It sets a high bar for appellants challenging such decisions, requiring not only proof of error but also a demonstration that the error was prejudicial and meaningfully affected the outcome. While acknowledging the court's complete power of review on questions of law, the majority's opinion reinforces that challenges to an agency's factual findings or discretionary methodologies, especially without clear statutory guidance, are difficult to sustain. The dissenting opinion, however, highlights the potential limits of such deference, particularly when an agency relies on methods that are widely criticized by experts or when its own staff lack relevant expertise, suggesting a tension between deference and the need for evidence-based decision-making to meet statutory mandates like 'minimum adverse environmental impact.'
