2021 Ohio 3301
Ohio2021Background
- Duke Energy applied to the Ohio Power Siting Board (OPSB) to build a 20-inch, ~13–14 mile natural-gas pipeline in Hamilton County, proposing a preferred and an alternate route.
- OPSB staff initially recommended the alternate route; Duke sought a stay to further investigate and later submitted supplemental materials addressing route changes, environmental concerns, and constructability.
- After a three-day evidentiary hearing, OPSB granted a certificate for the alternate route subject to 41 conditions; Reading, Blue Ash, NOPE, and Evendale appealed (Evendale later dismissed).
- Appellants argued (inter alia) that Duke’s application lacked fully developed route information, OPSB misapplied statutory criteria (R.C. 4906.10), OPSB denied due process, and OPSB failed to account for safety and environmental impacts.
- The Ohio Supreme Court reviewed OPSB’s factual findings for whether they were unlawful, unreasonable, or manifestly against the weight of the evidence, and affirmed the certificate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of application information / two-route requirement (Reading) | Alternate route lacked “fully developed information”; OPSB accepted incomplete application and later relied on supplements, violating rules/due process | Duke supplemented the record; staff produced an amended report; intervenors had discovery and hearing opportunities; any filing error produced no prejudice | Even assuming OPSB erred on filing-rule process, Reading showed no prejudice; affirmed certificate and conditions addressed concerns |
| Ability to meaningfully participate & federal-regs contact requirement (Blue Ash) | Blue Ash received too little info to participate; Duke failed to ID contacts per 49 C.F.R. §192.615 | Blue Ash had full docket access, discovery, attended public sessions; OPSB imposed Condition 40 requiring Duke to provide knowledgeable contacts; PUCO enforces federal regs | Blue Ash had adequate procedural access; condition and post-certification contacts cured concerns; claim denied |
| Need for the facility under R.C. 4906.10(A)(1) (NOPE) | OPSB merely accepted Duke’s corporate preference rather than demonstrating public need | Statute asks for the facility’s basis of need; OPSB relied on aging propane‑air plants/caverns, Lummus report, north–south supply balance, and aging Line A | Court held statutory text supports OPSB’s approach; factual findings have probative support and are not reversible |
| Nature of probable environmental impact under R.C. 4906.10(A)(2) (NOPE) | OPSB used a checkbox approach, ignored conflicts (e.g., Reading sewer), and failed meaningful analysis | OPSB conducted an extensive (32-paragraph) analysis, adopted mitigating conditions, and some arguments were unpreserved | OPSB adequately determined environmental impacts and imposed conditions; no reversible error |
| Safety / public interest under R.C. 4906.10(A)(6) (Blue Ash) | OPSB ignored safety risks (impact radius, high‑consequence areas, past incidents, pressure/classification) | OPSB required design, construction, and operational measures exceeding federal minima (thicker wall, in-line inspection, valve spacing, deeper cover, remote valves); adopted multiple safety conditions; PUCO inspection/oversight | Court found OPSB thoroughly addressed safety; record supports classification and conditions; claim fails |
Key Cases Cited
- In re Application of Black Fork Wind Energy, L.L.C., 3 N.E.3d 173 (Ohio 2013) (standard for reversal requires showing of harm from procedural rule failures)
- In re Application of Champaign Wind, L.L.C., 58 N.E.3d 1142 (Ohio 2016) (deference to board findings of fact; standard of review explained)
- State v. Hughes, 715 N.E.2d 540 (Ohio 1999) (statutory construction: courts may not add or delete words from statute)
- Util. Serv. Partners, Inc. v. Pub. Util. Comm., 921 N.E.2d 1038 (Ohio 2009) (issues are waived when no developed legal argument is supplied)
- In re Application of Ohio Power Co., 121 N.E.3d 320 (Ohio 2018) (appellate deference to agency factfinding; not reweigh evidence)
- In re Application of Columbus S. Power Co., 951 N.E.2d 751 (Ohio 2011) (appellant must show why parallel proceedings or other remedies are insufficient)
- In re Application of Middletown Coke Co., 939 N.E.2d 1210 (Ohio 2010) (agency jurisdictional errors that limit discovery and evidence can require remand)
- Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 749 N.E.2d 262 (Ohio 2001) (rehearing-preservation principles; who may preserve issues)