IN RE APPLICATION OF 6011 GREENWICH WINDPARK, L.L.C., REGARDING ITS CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED ISSUED IN CASE NO. 13-990-EL-BGN; GREENWICH NEIGHBORS UNITED, APPELLANT; POWER SITING BOARD ET AL., APPELLEES.
No. 2017-1375
SUPREME COURT OF OHIO
June 20, 2019
2019-Ohio-2406
O‘CONNOR, C.J.
APPEAL from the Power Siting Board, No. 15-1921-EL-BGA. Submitted March 5, 2019.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Application of 6011 Greenwich Windpark, L.L.C., Slip Opinion No. 2019-Ohio-2406.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-2406
IN RE APPLICATION OF 6011 GREENWICH WINDPARK, L.L.C., REGARDING ITS CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED ISSUED IN CASE NO. 13-990-EL-BGN; GREENWICH NEIGHBORS UNITED, APPELLANT; POWER SITING BOARD ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Application of 6011 Greenwich Windpark, L.L.C., Slip Opinion No. 2019-Ohio-2406.]
Power Siting Board—Application to modify previously issued siting certificate for wind-powered electric-generation facility to add new turbine models—Power Siting Board‘s approval of new wind-turbine models was not an “amendment” of the certificate for purposes of applying the current turbine-setback requirements stated in
{¶ 1} Appellant, Greenwich Neighbors United (“GNU“), appeals from orders of appellee Ohio Power Siting Board approving the application of 6011 Greenwich Windpark, L.L.C. (“Greenwich Windpark“), to add three new wind-turbine models to the list of turbines suitable for Greenwich Windpark‘s proposed wind farm in Huron County. GNU primarily argues that in approving the proposed changes, the board should have amended
{¶ 2} For the reasons explained below, we conclude that the board‘s approval of Greenwich Windpark‘s application did not require an amendment of its certificate, and we therefore affirm the board‘s orders.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 3} The Power Siting Board has exclusive authority to issue a certificate of environmental compatibility and public need for construction, operation, and maintenance of a “major utility facility,”
{¶ 4} In August 2014, the board approved Greenwich Windpark‘s application to construct a wind farm, subject to 53 conditions agreed to by Greenwich Windpark and the board‘s staff. According to the board‘s order, the proposed facility will be located on 4,650 acres of land leased from 26 landowners in Greenwich Township, Huron County—about 15 miles north of Mansfield. The wind farm will consist of up to 25 wind turbines and is designed to operate at an aggregate capacity of 60 megawatts and to generate 210,000 megawatts of electricity per year. In its original application for the certificate, Greenwich Windpark proposed only one turbine model for its project.
{¶ 5} In November 2015, Greenwich Windpark initiated a new board proceeding by filing an application to amend its certificate. Greenwich Windpark‘s application noted that turbine technology had advanced since it initially requested a certificate, and it therefore sought to add three new turbine models to the list of acceptable turbines for its wind farm.1 Greenwich Windpark‘s application also noted that two of the new turbine models were slightly larger than the certified model but none of the turbine locations would change and that all new models would either comply with the minimum setbacks in place when the board originally issued Greenwich Windpark‘s certificate or the turbines were subject to setback waivers that Greenwich Windpark had obtained in the certification case.
{¶ 6} Although GNU had not participated in the original certification proceeding, GNU intervened in the newly filed matter. According to GNU, some of its members own property near the proposed wind farm and it filed comments and objections opposing Greenwich Windpark‘s application.
{¶ 7} The board‘s staff investigated Greenwich Windpark‘s application and, in April 2016, issued a report recommending approval of the proposed turbine changes. In May 2016, the board approved Greenwich Windpark‘s application without holding a hearing, and in August 2017, the board denied GNU‘s request for a rehearing.
{¶ 8} GNU thereafter commenced this appeal, raising six assignments of error. We granted Greenwich Windpark‘s motion for leave to intervene to defend the board‘s orders. 151 Ohio St.3d 1422, 2017-Ohio-8365, 84 N.E.3d 1061. We later dismissed GNU‘s second assignment of error. 152 Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876.
II. STANDARD OF REVIEW
{¶ 9} We will reverse, modify, or vacate an order of the Power Siting Board “only when our review of the record reveals that the order is unlawful or unreasonable.” In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489, 2016-Ohio-1513, 58 N.E.3d 1142, ¶ 7; see
III. ANALYSIS
A. Proposition of law No. 1: whether the board acted unlawfully or unreasonably by refusing to subject Greenwich Windpark‘s application to the current minimum setback requirements in R.C. 4906.20 and 4906.201
1. The relevant statutory framework and the board‘s orders
{¶ 10} The primary issues on appeal involve the interpretation of
{¶ 11} In 2014—after the board had originally certified Greenwich Windpark‘s wind farm—the legislature amended
{¶ 12} In November 2015, Greenwich Windpark filed an application seeking to amend its certificate to, as described above, add three new turbine models. Although the board approved the application, the board concluded that Greenwich Windpark‘s requested turbine changes did not constitute an “amendment” for purposes of
The Board interprets the amendment addressed in
R.C. 4906.20 and4906.201 to apply specifically in those instances where an amendment results in a substantial change in the location of a turbine or an amendment results in a materialincrease in an environmental impact caused by a turbine that is not already addressed by conditions placed on the certificate.
Power Siting Bd. No. 15-1921-EL-BGA, 2016 Ohio PUC LEXIS 471, *10 (May 19, 2016).
{¶ 13} Relying on that definition, the board concluded that Greenwich Windpark‘s “application [did] not constitute an amendment that triggers the enhanced setbacks under
{¶ 14} In its entry denying GNU‘s application for rehearing, the board further clarified its interpretation of
{¶ 15} The board therefore refused to adopt GNU‘s interpretation of “amendment“; the board reasoned that GNU‘s interpretation “would serve to eliminate existing wind farm projects from commerce for minor modifications.” Id. at *17. The board noted that if the General Assembly had intended such a result, that intent “could have been explicitly stated.” Id. And considering that the legislature has entrusted the board with the responsibility of interpreting the words “change” and “alteration” regarding turbines in
{¶ 16} On appeal, GNU argues that the board acted unreasonably and unlawfully by refusing to subject Greenwich Windpark‘s
2. Analysis of the issue
{¶ 17} We conclude that the board reasonably determined that Greenwich Windpark‘s turbine changes here did not require an “amendment” to its certificate for purposes of applying the enhanced setback requirements in
{¶ 18} The issue in Black Fork was whether the board could lawfully extend the commencement-of-construction deadline in a siting certificate by granting a party‘s motion rather than complying with the statutory process for amending a certificate, which requires an application, staff investigation, and staff investigative report. Id. at ¶ 1-2, 12-14, 20-22. The board had argued that changes to a certificate‘s procedural timelines did not require an “amendment” and, in support, pointed to its long-standing administrative practice—in a range of power-siting matters—of extending certificates by granting motions. Id. at ¶ 16. We reviewed the statutes and rules applicable to amending a siting certificate and concluded that the board acted unlawfully in granting Black Fork‘s motion rather than following the statutory procedures for amending a certificate. Id. at ¶ 20, 30.
{¶ 19} Black Fork is distinguishable because it involved the meaning of “amendment” for purposes of
{¶ 20} This case has a different procedural posture than Black Fork and therefore warrants a separate analysis. In this case, rather than filing a motion like the wind-farm developer did in Black Fork, Greenwich Windpark filed an application to amend its certificate. Making revisions by application requires a more stringent process than making them by motion. For example, Greenwich Windpark gave public notice of the application. Interested parties were allowed to intervene in the action to address the proposed changes to the wind farm. And the board‘s staff conducted a full investigation into the substantive differences between the turbine approved in the original certificate and those proposed in the application. After following the statutory procedures for amending a certificate, the board concluded that the proposed changes did not constitute an amendment for purposes of
{¶ 21} The board here found that Greenwich Windpark‘s new turbine models were “adequately covered by the existing conditions of the certificate” and that the impacts of the proposal did “not require a change to the existing certificate.” 2017 Ohio PUC LEXIS 726 at *13. The legislature delegated regulatory authority to the board to regulate wind turbines. In addition, the legislature in
{¶ 22} Although the dissenting opinion asserts that our analysis here must be identical to that in Black Fork, the dissent fails to account for the differences in the statutes at issue in the two cases. ” ‘[T]he natural meaning of * * * words is not always conclusive as to the construction of statutes.’ ” State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917), quoting State v. Budd, 65 Ohio St. 1, 5, 60 N.E. 988 (1901). And although it is generally true that the words and phrases used by the General Assembly will be construed in their usual, ordinary meaning, that is not so when a contrary intention of the legislature clearly appears. S. Sur. Co. v. Std. Slag Co., 117 Ohio St. 512, 519, 159 N.E. 559 (1927). Here, we have identified several important differences between the relevant statutes in this case,
{¶ 23} Our decision in Black Fork should not be interpreted as requiring that every proposed change to a wind farm‘s certificate—no matter how minor or immaterial—is an amendment for purposes of applying the enhanced setback requirements. In this case, the board adopted a reasonable and practical approach for determining when an amendment is necessary for purposes of
{¶ 24} Accordingly, we reject GNU‘s first proposition of law.2
B. Proposition of law No. 3: whether the board unlawfully or unreasonably interpreted the setback-waiver provision in R.C. 4906.20(B)(2)(c) and whether the board failed to establish required procedural rules
1. The relevant statutory framework and the board‘s orders
{¶ 25}
{¶ 26} In its order issuing Greenwich Windpark‘s original certificate, the board noted that some of Greenwich Windpark‘s proposed turbines fell within the minimum setbacks but that Greenwich Windpark had either obtained or was in the process of obtaining waivers from the landowners adjacent to each of those particular turbines. During the proceedings in this matter, GNU argued that Greenwich Windpark had failed to secure all required waivers from neighboring landowners. The board rejected GNU‘s argument and concluded that Greenwich Windpark had already obtained the necessary waivers in the original certification case and that no additional waivers were necessary as a result of adding the new turbine models.
{¶ 27} On appeal, GNU argues that the board acted unlawfully by permitting Greenwich Windpark to waive the minimum setback requirements without first obtaining waivers from “all owners” of property adjacent to any portion of the proposed wind farm. According to GNU, the meaning of “all” in
{¶ 28} In response, the board asserts that
2. Analysis of the issue
{¶ 29} We conclude that the board‘s decision relied on the only reasonable interpretation of
{¶ 30}
{¶ 32} In addition, GNU‘s heavy reliance on the term “all” is misplaced. “Parsing individual words is useful only within a context.” State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 12. Here, the term “all” in
{¶ 33} Finally, GNU has not sufficiently developed its argument that it was “legally impossible” for Greenwich Windpark to secure setback waivers due to the board‘s alleged failure to establish procedural rules governing waivers. At the time the board issued the orders on appeal, it had adopted rules regarding setback waivers. See former
{¶ 34} Accordingly, we reject GNU‘s third proposition of law.
C. Proposition of law No. 4: whether the board acted unlawfully or unreasonably by failing to hold a hearing on Greenwich Windpark‘s application or by failing to take other actions
1. The relevant statutory framework and the board‘s orders
{¶ 35}
{¶ 36} As noted above, Greenwich Windpark filed an application for an amendment of its certificate. Although the board ultimately determined that Greenwich Windpark‘s proposed changes did not require an “amendment” for purposes of
{¶ 37} On appeal, GNU argues that the board was required to hold a hearing and that by refusing to do so, the board violated
2. Analysis of the issue
{¶ 38} GNU has failed to establish that it was entitled to a hearing in this case.
{¶ 39}
{¶ 40} Here, after reviewing Greenwich Windpark‘s application, GNU‘s comments and objections to the application, and the investigative report prepared by the board‘s staff, the board determined that Greenwich Windpark‘s proposed changes did not require a hearing under
{¶ 41} Specifically, GNU claims that a hearing was required because the three new turbine models “will result in substantial changes to the facility,” and GNU points to differences in size, noise, shadow flicker (occurring when the sun shines through the rotating blades of a turbine), and ice throw between the new turbines and the originally certified model. The board‘s staff, however, reviewed those differences and concluded in its report filed with the board that adding the three turbine models “would not require a change in location of any turbine sites” and that the conditions of the original certificate—plus a minor clarification to one condition—were “adequate to ensure that adverse environmental impacts would continue to be minimized for this project.” GNU has not proved otherwise.
{¶ 42} For example, after reviewing the potential noise impact of the new turbines, the board‘s staff noted that even if the new turbines produced slightly more noise than the originally certified model, the new models would adhere to the noise-limit condition imposed in the original certificate. GNU has not explained how a minimal increase in noise amounts to a “material increase in any environmental impact” requiring a hearing under
{¶ 43} GNU has also failed to establish any due-process violation. In the public-utility context, “we have repeatedly held that there is no constitutional right to
{¶ 44} GNU has not adequately explained how Moore supports its theory that it had a constitutional right to a hearing merely because Greenwich Windpark requested turbine changes to its previously certified wind farm. “[I]t is not generally the proper role of this court to develop a party‘s arguments.” In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19. By citing Moore, GNU seems to be challenging Greenwich Windpark‘s ability to construct a wind farm at all. To do that, it should have participated in the original proceeding when the certificate was issued. Absent further explanation from GNU, any legal right that it had to a hearing on Greenwich Windpark‘s amendment application stemmed directly from
{¶ 45} Under this proposition of law, GNU also asserts that the board failed to require public notice of Greenwich Windpark‘s application, failed to hold informational and local public hearings, failed to respond to GNU‘s objections, and violated
{¶ 46} For these reasons, we reject GNU‘s fourth proposition of law.
D. Proposition of law No. 5: whether the board acted unlawfully or unreasonably by limiting the scope of GNU‘s intervention
{¶ 47} In GNU‘s reply brief, it acknowledges that this issue is “moot.” Because the board and GNU ultimately agree that the board did not limit the scope of GNU‘s intervention, there is no actual controversy on this point. We therefore do not address GNU‘s fifth proposition of law.
E. Proposition of law No. 6: whether the board acted unlawfully or unreasonably by stating that it had promulgated the rules that the General Assembly required it to adopt
{¶ 48}
{¶ 49} GNU‘s argument is outside the scope of this appeal. If GNU is dissatisfied with the content of the board‘s administrative rules, it should have challenged those rules in a rulemaking proceeding. The issue here is whether the board‘s approval of Greenwich Windpark‘s amendment application was unlawful or unreasonable—not whether the board properly complied with the legislative mandate to establish reasonable regulations for wind farms.
{¶ 50} We therefore reject this proposition of law.
F. Greenwich Windpark‘s motion to strike
{¶ 51} After the parties completed briefing, Greenwich Windpark moved to strike the supplement GNU filed with its reply brief and the portions of the reply brief that rely on that supplement. Greenwich Windpark argues that the supplement contains materials that are not part of the record. Indeed, most of the materials are dated after the board issued the orders on appeal.
{¶ 52} “We generally strike evidence submitted by a party to a case here on appeal when the evidence was not submitted below.” Hilliard City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 154 Ohio St.3d 449, 2018-Ohio-2046, 114 N.E.3d 1185, ¶ 41, citing Orange City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 152 Ohio St.3d 325, 2017-Ohio-8817, 96 N.E.3d 223, ¶ 11, fn. 3.
{¶ 53} The challenged documents here refer to facts outside the record. Because appellate counsel cannot properly refer to such facts—and GNU has not identified a compelling reason to do so in this case—we grant the motion to strike the documents that are not part of the record and the portions of GNU‘s reply brief that rely on those documents.
IV. CONCLUSION
{¶ 54} For the foregoing reasons, we affirm the board‘s orders and grant Greenwich Windpark‘s motion to strike.
Orders affirmed.
FRENCH, FISCHER, and DONNELLY, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE and STEWART, JJ.
IN RE APPLICATION OF 6011 GREENWICH WINDPARK, L.L.C., REGARDING ITS CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED ISSUED IN CASE NO. 13-990-EL-BGN; GREENWICH NEIGHBORS UNITED, APPELLANT; POWER SITING BOARD ET AL., APPELLEES.
No. 2017-1375
SUPREME COURT OF OHIO
June 20, 2019
2019-Ohio-2406
KENNEDY, J., dissenting.
KENNEDY, J., dissenting.
{¶ 55} Because the majority abdicates this court‘s judicial duty and authority to “say what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803), when it defers to appellee Ohio Power Siting Board‘s interpretation of two unambiguous statutes,
{¶ 56} In this case, the board granted the request of 6011 Greenwich Windpark, L.L.C., for “an Amendment to its Certificate of Environmental Compatibility” to add three new wind-turbine models for use on its proposed wind farm. That alteration of the certificate is an “amendment” within the plain meaning of
Statutory Construction
{¶ 57} This case presents a straightforward question of statutory interpretation. Our duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted. Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18; Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. A court therefore cannot insert language into a statute under the guise of statutory interpretation. Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29. Instead, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, our role is to apply it as written. Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 14.
{¶ 58} Effective September 15, 2014, the General Assembly amended
Any amendment made to an existing certificate after the effective date of the amendment of this section by H.B. 483 of the 130th general assembly, shall be subject to the setback provision of this section as amended by that act. The amendments to this section by that act shall not be construed to limit or abridge any rights or remedies in equity or under the common law.
{¶ 59} We recently examined the statutory scheme for amending a certificate in In re Application of Black Fork Wind Energy, L.L.C., 2018-Ohio-5206. The issue in that case was whether altering the certificate to extend the time for the holder to commence construction of the wind farm amounted to an amendment of the certificate. We explained that the word “amendment” has a plain and ordinary meaning:
Black‘s Law Dictionary defines “amendment” as “[a] formal and usu. minor revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument; specif., a change made by addition, deletion, or correction; esp., an alteration in wording.” Black‘s Law Dictionary 98 (10th Ed.2014). Webster‘s Third New International Dictionary defines “amendment” as the “act of amending esp. for the better; correction of a fault or faults; reformation,” “the process of amending (as a motion, bill, act, or constitution),” and “an alteration proposed or effected by such process.” Webster‘s Third New International Dictionary 68 (2002). And “amend” is defined as “to change or alter in any way esp. in phraseology” or “to alter (as a motion, bill, or law) formally by modification, deletion, or addition.” Id.
{¶ 60} Applying this plain and ordinary meaning, we concluded that the Power Siting Board had amended a condition of the certificate “by changing the compliance deadline.” Id. at ¶ 19. We also noted that “had the board treated the motion for an extension as an application for an amendment, the current setback provisions in
{¶ 61} As we have already decided in Black Fork Wind Energy, an “amendment” is simply a change of or an alteration to a document such as an order of the board granting a certificate. It can be a minor revision or even something as small as an alteration in wording. 2018-Ohio-5206 at ¶ 21. Nothing in the word‘s plain meaning indicates that the existence of an amendment is a matter of degree or interpretation or that only a significant change constitutes an amendment.
{¶ 62} Moreover, the current setbacks apply to “[a]ny amendment.” (Emphasis added.)
{¶ 63} Applying
{¶ 64} This conclusion is buttressed by uncodified law enacted by the General Assembly. Uncodified law is the law of Ohio, but because it is has limited duration or operation, it is not assigned a permanent section number in the Revised Code. Maynard v. Eaton Corp., 119 Ohio St.3d 443, 2008-Ohio-4542, 895 N.E.2d 145, ¶ 7.
{¶ 65} Effective September 29, 2015, Section 749.20 of 2015 Am.Sub.H.B. No. 64 (“H.B. 64“) provided a grace period of 180 days in which a certificate could be amended to change a wind farm‘s turbines without triggering the new setbacks enacted by H.B. 483, “[n]otwithstanding division (B)(2)(b)(ii) of section 4906.20 of the Revised Code and division (B)(2) of section 4906.201 of the Revised Code.” The grace period applied when “[t]he sole purpose of the amendment [was] to make changes to one or more turbines that [were] approved under the existing certificate but [had] not yet been installed” and when other conditions were met, including that the new turbines be more efficient or otherwise more technologically advanced, that the number of turbines not be increased, and that their locations be the same as those established by the certificate. The General Assembly therefore recognized that a certificate is amended for purposes of
{¶ 66} For these reasons, the board‘s interpretation of
Black Fork Wind Energy Is Not Distinguishable
{¶ 67} Notably, in Black Fork Wind Energy, we rejected the board‘s argument that it has broad discretion to determine whether a particular change to a certificate is an “amendment” and instead applied the plain and ordinary meaning of the word “amendment” as a change or alteration of the certificate. 2018-Ohio-5206, at ¶ 16, 19. The majority, however, attempts to distinguish Black Fork Wind Energy “because it involved the meaning of ‘amendment’ for purposes of
{¶ 68} These distinctions are strained and unpersuasive. The fact that
{¶ 69} Similarly, the majority fails to explain why it matters that the amendments enacted by H.B. 483 “shall not be construed to limit or abridge any rights or remedies in equity or under the common law,”
{¶ 70} Putting these false distinctions aside reveals that at the core of the majority‘s analysis is the assertion that the word “amendment” can mean something different in
{¶ 71} Stare decisis is most compelling when precedent involves statutory construction. Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 6, 539 N.E.2d 103 (1989). And because Black Fork is not distinguishable on any genuine and material basis, its holding should provide the rule of decision in this case.
Deference to the Board
{¶ 72} Although it avoids using the word “deference” and addressing any of our caselaw explaining when it is appropriate to defer to an agency‘s interpretation of a statute, the majority upholds the board‘s orders because “the board adopted a reasonable and practical approach for determining when an amendment is necessary for purposes of
{¶ 73} Our caselaw recognizes that we may rely on an agency‘s expertise in interpreting a law when “highly specialized issues” are involved and when “agency expertise would * * * be of assistance in discerning the presumed intent of our General Assembly.” Consumers’ Counsel v. Pub. Util. Comm., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979). And we have recognized that “[d]ue deference should be given to statutory interpretations by an agency that has accumulated substantial expertise and to which the General Assembly has delegated enforcement responsibility.” Weiss, 90 Ohio St.3d at 17-18, citing Collinsworth v. W. Elec. Co., 63 Ohio St.3d 268, 272, 586 N.E.2d 1071 (1992).
{¶ 74} But here, the issue before us is neither highly specialized nor one related to the board‘s enforcement responsibility. Rather, this case requires us to simply engage in a familiar function—statutory construction—in which we apply established principles. And because the interpretation of a statute is a question of law, we review the board‘s interpretation de novo and without deference. Stewart v. Vivian, 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 23. Not only does deferring to the board‘s construction of
{¶ 75} In any case, “[t]o interpret what is already plain ‘is not interpretation but legislation.’ ” Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 31, quoting Iddings v. Jefferson Cty. School Dist. Bd. of Edn., 155 Ohio St. 287, 290, 98 N.E.2d 827 (1951).
{¶ 76} In this case, for example, the board in its entry denying rehearing explained that applying the new setbacks
{¶ 77} But nothing in
{¶ 78} In the last analysis, Greenwich Windpark expressly applied for an amendment to its certificate. It understood—or should have understood—that the amendment would be subject to the new setbacks pursuant to
Conclusion
{¶ 79} In H.B. 483, the General Assembly enacted more stringent setback requirements for wind farms. In doing so, it necessarily had to draw lines regarding when the new setbacks would apply. Recognizing that existing certificate holders and applicants had relied on the existing law in investing in wind-farm projects, it did not make the new setbacks applicable to applications made and certificates issued prior to the effective date of this legislation. But the legislature provided in
{¶ 80} It is the function of the General Assembly to weigh competing policy concerns and draw lines in enacting legislation. See Schwan v. Riverside Methodist Hosp., 6 Ohio St.3d 300, 302, 452 N.E.2d 1337 (1983). In contrast, our role “in reviewing legislative enactments is limited to interpreting the meaning of statutory provisions and determining whether they are in accord with the federal and state Constitutions.” Toledo v. State, 154 Ohio St.3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 31. Second-guessing the wisdom of the legislature‘s public-policy decisions does not fall
{¶ 81} The General Assembly‘s intent is manifest—the new setbacks enacted by H.B. 483 apply when a wind-farm certificate is amended to add or substitute a new model of turbine for use on the project. The new setback provision therefore applies to the amendment of Greenwich Windpark‘s certificate.
{¶ 82} Accordingly, I would reverse the orders of the Power Siting Board.
DEWINE and STEWART, JJ., concur in the foregoing opinion.
McNees, Wallace & Nurick, L.L.C., and Matthew R. Pritchard, for appellant.
Dave Yost, Attorney General, William L. Wright, Section Chief, and Jodi J. Bair, Thomas G. Lindgren, and John H. Jones, Assistant Attorneys General, for appellee Ohio Power Siting Board.
Vorys, Sater, Seymour & Pease, L.L.P., Michael J. Settineri, and Daniel E. Shuey; Bricker & Eckler, L.L.P., Daniel C. Gibson, Anne Marie Sferra, Sally W. Bloomfield, Dylan F. Borchers, and Devin D. Parram, for intervening appellee, 6011 Greenwich Windpark, L.L.C.
Dickinson Wright, P.L.L.C., Jonathan R. Secrest, Christine M.T. Pirik, and William V. Vorys, urging affirmance for amicus curiae, Mid-Atlantic Renewable Energy Coalition.