By Dan Trevas – Court News Ohio
The Supreme Court of Ohio today approved the permit to construct North America’s first freshwater offshore wind-powered electric-generation facility.
In a 6-1 decision, the Supreme Court found the Ohio Power Siting Board appropriately granted a certificate of environmental compatibility and public need to Icebreaker Windpower.
The company proposes to construct a six-turbine wind farm about 10 miles off the coast of Lake Erie near Cleveland. The project has been billed as a small-scale “demonstration project” to test the viability of offshore wind farms in Lake Erie and the other Great Lakes.
Opponents to the project challenged the Power Siting Board’s decision, primarily arguing that the state has not received enough data on whether the facility poses significant harm to birds and bats. Writing for the Court majority, Justice Jennifer Brunner explained that the board collected the necessary research to allow Icebreaker to begin construction, while also requiring far more data before the company can operate the turbines.
“Rather than requiring Icebreaker to resolve those matters before issuing the certificate, the board determined that the conditions on its grant of the application were sufficient to protect birds and bats and to ensure that the facility represented the minimum adverse environmental impact,” Justice Brunner wrote.
Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined Justice Brunner’s opinion.
In a dissenting opinion, Justice Sharon L. Kennedy explained that the board held the project to a lesser degree of scrutiny because the proposed wind farm is a first-of-its-kind demonstration project. However, state law does not make exceptions for demonstration projects, and the board failed to make the required findings regarding the environmental impacts of the proposed facility, including its impact on aquatic and avian wildlife, before issuing the certificate, she stated. If more relaxed standards should apply to demonstration projects, that decision must be made by the legislature, she wrote.
Board Considered Power Project
In 2017, Icebreaker sought a certificate from the Power Siting Board to build wind turbines on about 4.2 acres of submerged land located 8-to-10 miles from the Lake Erie shore. The company signed a lease with the Ohio Department of Natural Resources (ODNR) to operate in Lake Erie. Its projected electric-generation capacity qualified the facility as an “economically significant wind farm” under Ohio law and required it meet certain requirements. R.C. 4906.10(A) directs the board to make eight significant findings before approving a certificate, including the “nature of the probable environmental impact” of the facility, and that the “facility represents the minimum adverse environmental impact.”
Several interested parties participated in the board’s proceedings, including residents living near the Lake Erie shore. The residents claimed the board could not issue a certificate because Icebreaker had not provided adequate evidence to determine the wind farm’s probable impact on birds and bats. The residents also argued the project would violate the “public-trust doctrine,” which requires the state to maintain the use of Lake Erie for the benefit of the people of Ohio.
The board first issued a certificate to Icebreaker in May 2020. Because of the uncertainty of the wind turbines’ impact on birds and bats, the board required the turbine rotors be turned off from dusk to dawn for the majority of the year until research was completed on the potential impact to wildlife at night. Icebreaker objected to the conditions and asked the board to reconsider.
In October 2020, the board removed the shutdown requirements, and replaced them with new conditions, requiring Icebreaker to continue to monitor wildlife activity prior to and during construction to assess the possible impacts. The company was ordered to incorporate available technologies to minimize harm. The board stated it could reimpose the nighttime shutdowns if the data showed significant harm to wildlife once the turbines were operating.
Two residents of the lakeshore village of Bratenahl appealed the board’s decision to the Supreme Court, which is required to hear such cases.
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