In re Application of 6011 Greenwich Windpark, L.L.C., Regarding its Certificate of Environmental Compatibility and Public Need Issued in Case No. 13-990-EL-BGN; Greenwich Neighbors United, Appellant; Power Siting Board et al., Appellees.
Submitted March 5, 2019
from the Power Siting Board, No. 15-1921-EL-BGA.
McNees, Wallace & Nurick, L.L.C., and Matthew R.
Pritchard, for appellant.
Yost, Attorney General, William L. Wright, Section Chief, and
Jodi J. Bair, Thomas G. Lindgren, and John H. Jones,
Assistant Attorneys General, for appellee Ohio Power Siting
Sater, Seymour & Pease, L.L.P., Michael J. Settineri, and
Daniel E. Shuey; Bricker & Eckler, L.L.P., Daniel C.
Gibson, Anne Marie Sferra, Sally W. Bloomfield, Dylan F.
Borchers, and Devin D. Parram, for intervening appellee, 6011
Greenwich Windpark, L.L.C.
Dickinson Wright, P.L.L.C, Jonathan R. Secrest, Christine
M.T. Pirik, and William V. Vorys, urging affirmance for
amicus curiae, Mid-Atlantic Renewable Energy Coalition.
1} Appellant, Greenwich Neighbors United
("GNU"), appeals from orders of appellee Ohio Power
Siting Board approving the application of 6011 Greenwich
Windpark, L.L.C. ("Greenwich Windpark"), to add
three new wind-turbine models to the list of turbines
suitable for Greenwich Windpark's proposed wind farm in
Huron County. GNU primarily argues that in approving the
proposed changes, the board should have amended Greenwich
Windpark's siting certificate and should have applied the
enhanced minimum turbine-setback requirements applicable to
any certificate "amendment" under the current
versions of R.C. 4906.20 and 4906.201, which became effective
September 15, 2014.
2} For the reasons explained below, we conclude that
the board's approval of Greenwich Windpark's
application did not require an amendment of its certificate,
and we therefore affirm the board's orders.
FACTS AND PROCEDURAL BACKGROUND
3} The Power Siting Board has exclusive authority to
issue a certificate of environmental compatibility and public
need for construction, operation, and maintenance of a
"major utility facility," R.C. 4906.01(B)(1), such
as a wind-powered electric-generation facility, also known as
a wind farm or wind park. See R.C. 4906.01(D),
4906.03, and 4906.13.
4} In August 2014, the board approved Greenwich
Windpark's application to construct a wind farm, subject
to 53 conditions agreed to by Greenwich Windpark and the
board's staff According to the board's order, the
proposed facility will be located on 4, 650 acres of land
leased from 26 landowners in Greenwich Township, Huron
County-about 15 miles north of Mansfield. The wind farm will
consist of up to 25 wind turbines and is designed to operate
at an aggregate capacity of 60 megawatts and to generate 210,
000 megawatts of electricity per year. In its original
application for the certificate, Greenwich Windpark proposed
only one turbine model for its project.
5} In November 2015, Greenwich Windpark initiated a
new board proceeding by filing an application to amend its
certificate. Greenwich Windpark's application noted that
turbine technology had advanced since it initially requested
a certificate, and it therefore sought to add three new
turbine models to the list of acceptable turbines for its
wind farm. Greenwich Windpark's application also
noted that two of the new turbine models were slightly larger
than the certified model but none of the turbine locations
would change and that all new models would either comply with
the minimum setbacks in place when the board originally
issued Greenwich Windpark's certificate or the turbines
were subject to setback waivers that Greenwich Windpark had
obtained in the certification case.
6} Although GNU had not participated in the original
certification proceeding, GNU intervened in the newly filed
matter. According to GNU, some of its members own property
near the proposed wind farm and it filed comments and
objections opposing Greenwich Windpark's application.
7} The board's staff investigated Greenwich
Windpark's application and, in April 2016, issued a
report recommending approval of the proposed turbine changes.
In May 2016, the board approved Greenwich Windpark's
application without holding a hearing, and in August 2017,
the board denied GNU's request for a rehearing.
8} GNU thereafter commenced this appeal, raising six
assignments of error. We granted Greenwich Windpark's
motion for leave to intervene to defend the board's
orders. 151 Ohio St.3d 1422, 2017-Ohio-8365, 84 N.E.3d 1061.
We later dismissed GNU's second assignment of error. 152
Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876.
STANDARD OF REVIEW
9} We will reverse, modify, or vacate an order of
the Power Siting Board "only when our review of the
record reveals that the order is unlawful or
unreasonable." In re Application of Champaign Wind,
L.L.C., 146 Ohio St.3d 489, 2016-Ohio-1513, 58 N.E.3d
1142, ¶ 7; see R.C. 4906.12 (incorporating the
standard of review from R.C. 4903.13). We will not reverse or
modify a board's order as to questions of fact when the
record contains sufficient probative evidence to show that
the order was not manifestly against the weight of the
evidence and was not so clearly unsupported by the record as
to show misapprehension, mistake, or willful disregard of
duty. Champaign Wind at ¶ 7. As to questions of
law, we have complete and independent power of review in
appeals from the board. Id.
Proposition of law No. 1: whether the board acted unlawfully
or unreasonably by refusing to subject
Greenwich Windpark's application to the
current minimum setback requirements in R.C. 4906.20 and
The relevant statutory framework and the board's
10} The primary issues on appeal involve the
interpretation of R.C. 4906.20 and 4906.201-power-siting
statutes applicable only to wind farms. R.C. 4906.20 applies
to an "economically significant wind farm," which
is a wind farm capable of operating at an aggregate capacity
between 5 and 50 megawatts, R.C. 4906.13(A). R.C. 4906.201
applies to a wind farm capable of operating at an aggregate
capacity of 50 megawatts or more, such as Greenwich
Windpark's project. R.C. 4906.201(A), however,
incorporates the "minimum setback requirements"
established by the board under R.C. 4906.20(B)(2).
11} In 2014-after the board had originally certified
Greenwich Windpark's wind farm-the legislature amended
R.C. 4906.20 and 4906.201 to significantly increase the
minimum turbine-setback requirements for new wind-farm
certificates. In addition, the legislature enacted R.C.
4906.20(B)(2)(b)(ii) and 4906.201(B)(2), both of which state
that those new setback requirements apply to "[a]ny
amendment made to an existing certificate" after the
effective date of the new enhanced setbacks-that is,
September 15, 2014. The legislature also instructed in both
statutes, however, that the amendments to R.C. 4906.20 and
4906.201 "shall not be construed to limit or abridge any
rights or remedies in equity or under the common law."
12} In November 2015, Greenwich Windpark filed an
application seeking to amend its certificate to, as described
above, add three new turbine models. Although the board
approved the application, the board concluded that Greenwich
Windpark's requested turbine changes did not constitute
an "amendment" for purposes of R.C. 4906.20 and
4906.201. According to the board, the term
"amendment" in those two statutes has a very
specific meaning based on the way the legislature chose to
word the statutes:
The Board interprets the amendment addressed in R.C. 4906.20
and 4906.201 to apply specifically in those instances where
an amendment results in a substantial change in the location
of a turbine or an amendment results in a material increase
in an environmental impact caused by a turbine that is not
already addressed by conditions placed on the certificate.
Siting Bd. No. 15-1921-EL-BGA, 2016 Ohio PUC LEXIS 471, *10
(May 19, 2016).
13} Relying on that definition, the board concluded
that Greenwich Windpark's "application [did] not
constitute an amendment that triggers the enhanced setbacks
under R.C. 4906.201(B)(2)," because the application did
not relocate any turbines or create any new environmental
impacts beyond those already addressed in the original
certificate. Id. at *22.
14} In its entry denying GNU's application for
rehearing, the board further clarified its interpretation of
R.C. 4906.20 and 4906.201. Because those statutes do not
define the meaning of the phrase "[a]ny amendment made
to an existing certificate," the board noted that it
"used its discretion and expertise to determine what
qualifies" as an amendment, in the same way it must
create parameters for undefined terms when fulfilling its
statutory duty to" 'prescribe reasonable regulations
regarding any wind turbines * * *, including, but not limited
to, their * * * change, alteration, maintenance,
removal, use, or enlargement.'" (Emphasis added by
the board.) Power Siting Bd. No. 15-1921-EL-BGA, 2017 Ohio
PUC LEXIS 726, *12-13 (Aug. 17, 2017), quoting R.C
4906.20(B)(2). "[P]roject changes that are adequately
addressed by existing certificate conditions," the board
concluded, "do not require an amendment to the original
certificate." Id. at *16. To support its
interpretation, the board noted that construction of wind
farms is often delayed for years after initial certification,
id. at *15, and that a change it sees "with
frequency" involves updates to turbine models "that
could serve to make wind turbines more efficient and in many
circumstances, less obtrusive to surrounding property
owners," id. at *16. Applying the enhanced
setbacks to every type of minor change "could prove
detrimental to the originally certificated project."
Id. The board noted that "[n]ot every proposed
change to a major utility facility requires an amendment to
an existing certificate." Id. at *14.
15} The board therefore refused to adopt GNU's
interpretation of "amendment"; the board reasoned
that GNU's interpretation "would serve to eliminate
existing wind farm projects from commerce for minor
modifications." Id. at *17. The board noted
that if the General Assembly had intended such a result, that
intent "could have been explicitly stated."
Id. And considering that the legislature has
entrusted the board with the responsibility of interpreting
the words "change" and "alteration"
regarding turbines in R.C. 4906.20(B)(2), the board concluded
that it is required to use "its expertise of the siting
process to interpret these words in a manner that recognizes
the practicality of siting commercial wind farms while also
adhering to the words of the statute." Id. at
*17. Indeed, here it was clear to the board that upgrading
the turbine models was a minor change that merely allowed
Greenwich Windpark "to take advantage of technological
advancements." Id. The board further concluded
that its interpretation of "[a]ny amendment made to an
existing certificate" is consistent with the
legislature's instruction that the amendments to R.C.
4906.20 and 4906.201 enacted by the General Assembly in
2014" 'shall not be construed to limit or abridge
any rights or remedies in equity or under the common
law.'" Id. at *14, quoting R.C.
4906.20(B)(2)(b)(ii) and 4906.201(B)(2).
16} On appeal, GNU argues that the board acted
unreasonably and unlawfully by refusing to subject Greenwich
Windpark's application to the current minimum turbine
setbacks applicable to any certificate "amendment."
GNU contends that our recent decision in In re
Application of Black Fork Wind Energy, LLC, __ Ohio
St.3d__, 2018-Ohio-5206, __ N.E.3d__, controls the outcome
here and that under the plain and ordinary meaning of the
term "amendment," Greenwich Windpark sought and
received an amendment to its certificate, which triggered
application of the enhanced setback requirements under R.C.
Analysis of the issue
17} We conclude that the board reasonably determined
that Greenwich Windpark's turbine changes here did not
require an "amendment" to its certificate for
purposes of applying the enhanced setback requirements in
R.C. 4906.20 and 4906.201. Although our recent decision in
Black Fork guides our analysis in this case, it does
not require a conclusion that the approved turbine changes
amounted to an "amendment" for purposes of R.C.
4906.20 and 4906.201.
18} The issue in Black Fork was whether the
board could lawfully extend the commencement-of-construction
deadline in a siting certificate by granting a party's
motion rather than complying with the statutory process for
amending a certificate, which requires an application, staff
investigation, and staff investigative report. Id.
at ¶ 1-2, 12-14, 20-22. The board had argued that
changes to a certificate's procedural timelines did not
require an "amendment" and, in support, pointed to
its long-standing administrative practice-in a range of
power-siting matters-of extending certificates by granting
motions. Id. at ¶ 16. We reviewed the statutes
and rules applicable to amending a siting certificate and
concluded that the board acted unlawfully in granting Black
Fork's motion rather than following the statutory
procedures for amending a certificate. Id. at ¶
19} Black Fork is distinguishable because
it involved the meaning of "amendment" for purposes
of R.C. 4906.06 and 4906.07, two general statutes applicable
to all power-siting matters. Because the legislature had not
defined "amendment" as it is used in R.C.
4906.06(E) and 4906.07(B), we looked to the common, ordinary,
and accepted meaning of the term to resolve the question
before us. "In construing statutes, it is customary to
give words their plain ordinary meaning unless the
legislative body has clearly expressed a contrary
intention." Youngstown Club v. Porterfield, 21
Ohio St.2d 83, 86, 255 N.E.2d 262 (1970).
20} This case has a different procedural posture
than Black Fork and therefore warrants a separate
analysis. In this case, rather than filing a motion like the
wind-farm developer did in Black Fork, Greenwich
Windpark filed an application to amend its certificate.
Making revisions by application requires a more stringent
process than making them by motion. For example, Greenwich
Windpark gave public notice of the application. Interested
parties were allowed to intervene in the action to address
the proposed changes to the wind farm. And the board's
staff conducted a full investigation into the substantive
differences between the turbine approved in the original
certificate and those proposed in the application. After
following the statutory procedures for amending a
certificate, the board concluded that the proposed changes
did not constitute an amendment for purposes of R.C. 4906.20
and 4906.201. Those two statutes are specific to wind farms.
The General Assembly, through R.C. 4906.20 and 4906.201,
vested the board with broad authority to regulate wind
turbines and their associated facilities, including changes
and alterations to turbines. R.C. 4906.20(B)(2) specifically
requires the board to "prescribe reasonable regulations
regarding any wind turbines and associated facilities of an
economically significant wind farm, including, but not
limited to, their location, erection, construction,
reconstruction, change, alteration, maintenance,
removal, use, or enlargement." (Emphasis added.)
21} The board here found that Greenwich
Windpark's new turbine models were "adequately
covered by the existing conditions of the certificate"
and that the impacts of the proposal did "not require a
change to the existing certificate." 2017 Ohio PUC LEXIS
726 at *13. The legislature delegated regulatory authority to
the board to regulate wind turbines. In addition, the
legislature in R.C. 4906.20(B)(2)(b)(ii) and 4906.201(B)(2)
expressly instructed that the 2014 amendments to R.C. 4906.20
and 4906.201 "shall not be construed to limit or abridge
any rights or remedies in equity or under the common
law"-another difference from the statutes at issue in
Black Fork. Accordingly, and pursuant to its
statutory authority on these ...