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In re Application of 6011 Greenwich Windpark, L.L.C.

Supreme Court of Ohio

June 20, 2019

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

          Appeal from the Power Siting Board, No. 15-1921-EL-BGA.

          McNees, Wallace & Nurick, L.L.C., and Matthew R. Pritchard, for appellant.

          Dave 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 Board.

          Vorys, 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.

          O'CONNOR, C.J.

         {¶ 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.

         I. 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.[1] 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.

         II. 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.

         III. ANALYSIS

         A. 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 4906.201

         1. The relevant statutory framework and the board's orders

         {¶ 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.

         Power 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. 4906.201(B)(2).

         2. 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 ¶ 20, 30.

         {¶ 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 ...


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