2022 Ohio 2742
Ohio2022Background
- Icebreaker Windpower filed to build a six-turbine, 20.7 MW offshore wind facility on ~4.2 acres 8–10 miles off Cleveland in Lake Erie—the first freshwater offshore wind project in North America; board approval is required under R.C. 4906.10.
- The village residents (appellants) intervened and challenged the application mainly on two grounds: (1) insufficient evidence to determine the facility’s probable environmental impact and that it represents the minimum adverse environmental impact (R.C. 4906.10(A)(2) & (3)), especially for birds and bats; and (2) the project allegedly violates the public-trust doctrine and thus cannot meet the public-interest requirement of R.C. 4906.10(A)(6).
- The Power Siting Board approved a revised stipulation and granted a certificate subject to numerous conditions (pre- and postconstruction radar monitoring, collision-monitoring technology, mitigation/feathering triggers, etc.). The board initially imposed a nighttime shutdown condition, then removed it on partial rehearing after adopting a process for preconstruction data and agency oversight.
- Evidence before the board included radar and acoustic studies, aerial surveys, and reviews of land-based Great Lakes wind projects; staff and ODNR participated in stipulations and conditions.
- The Supreme Court of Ohio affirmed the board’s order, holding the board’s factual findings under R.C. 4906.10(A)(2)–(3) were supported and that the board lacks authority to make public-trust determinations (those duties vest with ODNR).
Issues
| Issue | Plaintiff's Argument (Dempsey/Maloney) | Defendant's Argument (Board / Icebreaker) | Held |
|---|---|---|---|
| Whether the record supported the board’s findings under R.C. 4906.10(A)(2) (nature of probable environmental impact) and (A)(3) (minimum adverse environmental impact) | Insufficient preconstruction radar and monitoring; evidence cannot quantify likely impacts to birds/bats; board should have required all data (and kept mandatory shutdown) before certification | Record contained multiple studies and expert analyses; board may impose reasonable conditions (pre/post monitoring, mitigation) and resolve some issues after certification per precedent | Affirmed: board’s determinations were lawful/reasonable; conditions and staged monitoring satisfied statutory requirements; removal of shutdown on rehearing was not unlawful |
| Whether issuing the certificate violated the public-trust doctrine and R.C. 4906.10(A)(6) | Project unlawfully relinquishes state/public trust in Lake Erie to a private, for-profit entity; board must adjudicate public-trust issues before approval | Board lacks statutory authority to make public-trust determinations; ODNR is statutorily assigned to administer submerged-land leases and the public trust; R.C. 4906.10(A)(6) does not confer public-trust power | Affirmed: board correctly concluded it lacked jurisdiction to make public-trust determinations; ODNR controls public-trust administration |
Key Cases Cited
- State ex rel. Squire v. Cleveland, 150 Ohio St. 303, 82 N.E.2d 709 (Ohio 1948) (establishes Ohio public-trust doctrine and state trusteeship over Lake Erie submerged lands)
- In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 966 N.E.2d 869 (Ohio 2012) (board may grant certificates subject to conditions and defer some implementation details)
- In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489, 58 N.E.3d 1142 (Ohio 2016) (standard for reviewing board factual findings; not to reverse if record contains probative evidence)
- In re Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 3 N.E.3d 173 (Ohio 2013) (same standard of review applies to power-siting determinations)
- In re Application of Duke Energy Ohio, Inc., 166 Ohio St.3d 438, 187 N.E.3d 472 (Ohio 2021) (reaffirms board authority to impose conditions on certificates)
- State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 955 N.E.2d 935 (Ohio 2011) (recognizes ODNR’s statutory role in care, protection, and enforcement of Ohio’s rights in submerged lands)