2018 Ohio 5206
Ohio2018Background
- Black Fork Wind Energy received a Power Siting Board certificate in Jan. 2012 to build a wind farm subject to condition No. 70: construction must commence within five years (deadline Jan. 23, 2017).
- After the certificate and appeals, Black Fork filed (a) a motion in Sept. 2014 in the original case seeking a two-year extension of the construction-deadline to Jan. 23, 2019, and (b) a separate application to amend the certificate (new case) to add turbine models.
- The board granted the two-year extension by ruling on Black Fork’s motion (Mar. 24, 2016) rather than treating it as an amendment application processed under R.C. 4906.06(E)–4906.07(B).
- Board staff had investigated Black Fork’s separate amendment applications and issued reports for those proceedings; the appellants here never received a staff report specific to the 2014 extension motion.
- Appellants challenged the extension, arguing it was an “amendment” (because it altered a material certificate condition) and therefore had to follow the statutory amendment procedures; they also argued the shortcut let Black Fork evade newer turbine-setback requirements.
- The Supreme Court of Ohio held the extension was an amendment, that the board unlawfully granted the extension via motion without the statutorily required amendment process, and reversed and remanded for further proceedings.
Issues
| Issue | Appellants' Argument | Board/Black Fork's Argument | Held |
|---|---|---|---|
| Whether the board’s two-year extension of the construction-deadline constituted an “amendment” of the certificate | Extension changed a material certificate condition (No. 70) and therefore was an amendment requiring R.C. 4906.06(E) procedures | “Amendment” should be limited to proposed changes to the facility; timeline changes are procedural and not amendments; board has discretion and long-standing practice to grant extensions by motion | Held: Extension was an amendment because it altered the certificate’s deadline; common meaning of “amendment” controls |
| Whether the board lawfully granted the extension by motion rather than requiring an amendment application and staff investigation | Board acted unlawfully; statute requires an application for amendment and staff investigation/report | The board’s practice of approving extensions by motion is longstanding and workable; R.C. 4906.07(B) shows amendment applies to facility changes | Held: Board acted unlawfully by granting the extension via motion; Black Fork should have filed amendment application and staff should have investigated |
| Whether appellants showed prejudice from the board’s procedure | Lack of a staff report and investigation on the specific extension deprived appellants of materials needed to challenge and created realistic possibility of different outcome (e.g., different application of new setback statutes) | Because staff had investigated related filings, appellants weren’t prejudiced | Held: Appellants established prejudice (realistic possibility of different outcome); reversal required |
| Whether the board must apply current turbine-setback statutes when an amendment occurs | Appellants: treating the extension as an amendment could trigger R.C. 4906.20/4906.201 setback provisions and prevent evasion of newer requirements | Black Fork and board raised statutory-construction and constitutional challenges; board did not decide setback applicability here | Held: Court declined to decide setback applicability or constitutional issues; those remain for proceedings where they are squarely presented |
Key Cases Cited
- In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 3 N.E.3d 173 (2013) (prior appeal affirming original certificate)
- In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489, 58 N.E.3d 1142 (2016) (standard of review for Power Siting Board orders)
- In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 966 N.E.2d 869 (2012) (Power Siting Board authority to issue certificates)
- Ohio Consumers’ Counsel v. Pub. Util. Comm., 67 Ohio St.2d 153, 423 N.E.2d 820 (1981) (purpose of staff reports to enable meaningful challenge)