In re Application of Buckeye Wind, L.L.C.
131 Ohio St. 3d 449
| Ohio | 2012Background
- Buckeye Wind proposed a 70-turbine wind farm in Champaign County, Ohio exceeding 126 MW, requiring Power Siting Board (PSB) approval as a major utility facility.
- Buckeye filed a 1,500-page application for environmental compatibility and public need in April 2009; neighbors UNU et al. and Champaign County/intervenors opposed.
- Board granted construction certificate with 70 conditions; neighbors sought more protection and challenged bond sufficiency.
- County sought bonding to cover road damages and turbine decommissioning; the board set a $5,000 bond for the first year.
- The court reviewed PSB’s decision under R.C. 4906, affirming the certificate as issued with mitigation conditions; dissenters challenged delegation to staff and procedural public participation.
- The majority held that the process complied with statutes, that staff condition recommendations were properly tied to certificate conditions, and that no remand was necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board properly conducted hearings and public input | Neighbors argue rights to call witnesses and full hearing were violated | Board and Buckeye contend intervenors participated and hearings complied with rules | No reversible error; hearings and public input were adequate. |
| Whether the board improperly delegated decisionmaking to staff | Delegation undermines board's ultimate responsibility | Statutes allow staff to monitor compliance under conditions; board retains final authority | Not improper delegation; board retains control and can modify certificate through conditions. |
| Whether the certificate should be issued before all issues are finally resolved | Issues must be fully resolved by board before granting certificate | R.C. 4906.10 allows issuance with conditions and ongoing review | Certificate issued with 70 conditions; no need for further immediate hearing. |
| Whether bonding for decommissioning is adequate | Bond ($5,000 per turbine) is inadequate to ensure decommissioning | Bond amount supported by testimony and context; decommissioning risks addressed by conditions | Bond adequacy upheld; no remand required. |
| Whether noise setbacks and environmental impacts are reasonable | Neighbors claim noise limits/setbacks are vague or too lenient | Board’s flexible, case-by-case approach is permissible given evolving technology | Noise/setbacks are supported; board properly balanced technology and impacts. |
Key Cases Cited
- In re Application of Am. Transm. Sys., Inc., 125 Ohio St.3d 333 (2010-Ohio-1841) (delegation allowed but board must retain decisionmaking authority)
- Chester Twp. v. Power Siting Comm., 49 Ohio St.2d 231 (1977) (standard of review for PSB orders)
- Ohio Consumers' Counsel v. Pub. Util. Comm., 121 Ohio St.3d 362 (2009-Ohio-604) (complete and independent power of review over board orders)
- Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530 (2004-Ohio-6767) (unified standard of review for PSB orders)