IN RE APPLICATION OF BLACK FORK WIND ENERGY, L.L.C., FOR A CERTIFICATE TO SITE A WIND-POWERED ELECTRIC GENERATING FACILITY IN CRAWFORD AND RICHLAND COUNTIES, OHIO; BIGLIN ET AL., APPELLANTS; POWER SITING BOARD ET AL., APPELLEES.
No. 2017-0412
Supreme Court of Ohio
December 27, 2018
2018-Ohio-5206
DeGenaro, J.
APPEAL from the Power Siting Board, No. 10-2865-EL-BGN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Application of Black Fork Wind Energy, L.L.C., Slip Opinion No. 2018-Ohio-5206.]
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. 2018-OHIO-5206
Power Siting Board—Motion to extend duration of siting certificate for wind-powered electric generating facility—Power Siting Board‘s extension of certificate constituted an “amendment” under
(No. 2017-0412—Submitted August 1, 2018—Decided December 27, 2018.)
DEGENARO, J.
{¶
{¶ 2} We conclude that the board‘s extension of Black Fork‘s certificate constitutes an amendment and that the board acted unlawfully in granting Black Fork‘s motion rather than following the statutory procedures for amending a certificate. Because this error prejudiced appellants, we reverse the board‘s orders and remand this cause for further proceedings consistent with this opinion.
Facts and Procedural Background
{¶ 3} This is the second appeal involving the proposed Black Fork Wind Energy Project. As we previously explained:
In March 2011, Black Fork filed an application to construct a wind farm consisting of up to 91 turbines in portions of Crawford and Richland Counties. In addition to the turbines, Black Fork‘s project includes access roads, electrical collection lines, a construction-staging area, a concrete-batch plant, a substation, and an operation and maintenance facility. The project area covers approximately 24,000 acres of land, and the facilities will be located on approximately 14,800 acres of leased private land with 150 participating landowners. According to Black Fork‘s application, voluntary agreements have been signed by the participating property owners within the project area. Black Fork claims that the facility will provide up to 200 megawatts of renewable energy “with effectively
zero air emissions and waste generation.”
{¶ 4} After Black Fork filed its initial application, several local political subdivisions and individuals—including the appellants in this case, who claimed to live near the leased land or within the project boundaries—intervened in the board proceeding. In October 2011, the board conducted an evidentiary hearing, and in January 2012, it granted Black Fork a certificate to construct the proposed wind farm.
{¶ 5} The board‘s order adopted stipulated conditions agreed to by several of the parties and the board‘s staff (but not by the appellants in this case), including “condition No. 70,” which stated that the certificate “shall become invalid if the Applicant has not commenced a continuous course of construction of the proposed facility within five (5) years of the date of journalization of the certificate.” Because the board journalized its decision on January 23, 2012, Black Fork had until January 23, 2017, to commence construction.
{¶ 6} Five of the seven appellants involved in the present case appealed to this court, but in December 2013, we affirmed the board‘s order granting Black Fork‘s certificate. See Black Fork Wind Energy at ¶ 23-24.
{¶ 7} On September 12, 2014, Black Fork filed the motion that is the subject of this appeal with the board under the same case number (No. 10-2865-EL-BGN) in which Black Fork‘s certificate had been granted, seeking to extend its certificate by two years, with a new commencement-of-construction deadline of January 23, 2019. Black Fork argued that the delay caused by the prior appeal to this court combined with recent changes in the energy market had hampered its ability to commence construction of the project. Most of the appellants—who were then acting pro se—filed responses opposing Black Fork‘s motion to extend the certificate.
{¶ 8} Also on September 12, 2014, Black Fork filed an application to amend its certificate, which created a new proceeding before the board with a new case number (No. 14-1591-EL-BGA).1 In its application to amend, Black Fork asserted that two new turbine models had become available since it originally applied for a certificate and that the new models would increase the productivity of the project. Black Fork therefore requested that the board amend its certificate to include the two new models. Some of the appellants involved in the present case intervened in Black Fork‘s amendment-application proceeding and opposed Black Fork‘s request.
{¶ 9} As will be explained more fully below, Ohio law requires the board‘s staff to investigate any application to amend a siting certificate and to issue a report of its findings. Accordingly, board staff investigated Black Fork‘s amendment application in case No. 14-1591-EL-BGA and, in August 2015, filed a report recommending approval of the application. Later that month, on August 27, 2015, the board issued an order formally approving it. Notably, the board determined that the turbine-setback requirements in place at the time it initially certified Black Fork‘s proposed wind farm continued to apply to Black Fork‘s project—notwithstanding the legislature‘s enactment of a more stringent
{¶ 10} About seven months later, on March 24, 2016, the board in the case now before us granted Black Fork‘s motion to extend the certificate. Appellants filed a rehearing application, which the board denied in an order issued on February 2, 2017. Appellants then filed this appeal, raising four propositions of law. We granted Black Fork‘s motion for leave to intervene to defend the board‘s orders.2
Standard of Review
{¶ 11} 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
R.C. Chapter 4906 and related Administrative Code provisions
{¶ 12} The board has exclusive authority to issue certificates of environmental compatibility and public need for construction, operation, and maintenance of “major utility facilities” such as the proposed wind farm at issue in this case. In re Application of Buckeye Wind, L.L.C., 131 Ohio St.3d 449, 2012-Ohio-878, 966 N.E.2d 869, ¶ 2;
{¶ 13} Most importantly for purposes of this case, to commence the amendment process, a litigant must first file an application with the board that is “in such form and contain[s] such information as the board prescribes.”
{¶ 14} The parties here appear to agree on the correct process for amending a certificate. They disagree, however, on the meaning of “amendment” and, more specifically, on whether extending a certificate constitutes an “amendment” of the certificate. Neither the Revised Code in Chapter 4906 nor the board‘s applicable administrative rules define what constitutes an “amendment” or when an amendment is necessary. Accordingly, the primary issue before us is whether the board‘s two-year extension of Black Fork‘s certificate amounted to an “amendment” of that certificate.
The two-year certificate extension amounted to an amendment
{¶ 15} Appellants assert that extending Black Fork‘s certificate was an “amendment” because it modified a material condition of the original certificate—namely, the five-year commencement-of-construction deadline of condition No. 70. Therefore, in their first proposition of law, appellants assert that the board acted unreasonably and unlawfully by amending Black Fork‘s certificate through the motion Black Fork filed rather than by following the statutory process for amending a certificate. In their second proposition of law, appellants assert that the board lacked authority to alter, waive, or dispense with the statutory procedures.
{¶ 16} In response, the board argues that because
{¶ 17} When construing a statute, we first look to its plain language. State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, ¶ 7. If the meaning of a statute is unambiguous, we must apply it as written without further interpretation. Weiss v. Pub. Util. Comm., 90 Ohio St.3d 15, 17, 734 N.E.2d 775 (2000). Most importantly for this case, “[i]n the absence of a definition of a word or phrase used in a statute, words are to be given their common, ordinary, and accepted meaning.” State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 39, citing Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370 (1948), paragraph five of the syllabus; see also Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17.
{¶ 18} 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.
{¶ 19} Under any common, ordinary, and accepted meaning, the board‘s actions here amounted to an “amendment” of Black Fork‘s certificate. In its order approving the original certificate, the board adopted condition No. 70, which provided that “[t]he certificate shall become invalid if the Applicant has not commenced a continuous course of construction of the proposed facility within five (5) years of the date of journalization of the certificate.” In the orders on appeal, the board altered this deadline by giving Black Fork two additional years to start constructing the proposed wind project and it therefore revised the certificate‘s original expiration date from January 23, 2017, to January 23, 2019. In other words, the board amended condition No. 70 by changing the compliance deadline.
{¶ 20} Because the board is a creature of statute, it can exercise only those powers the legislature confers on it. See Discount Cellular, Inc. v. Pub. Util. Comm., 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 51;
{¶ 21} Administrative deference is not necessary in this case. Because the statutory language is clear we need go no further than applying the common and ordinary meaning of “amendment” to resolve this appeal. Nor does our decision necessarily require the board “to re-litigate a case over a mere timing issue” as the
{¶ 22} Accordingly, we conclude that the board‘s two-year extension of the certificate amounted to an “amendment” and that the board therefore acted unlawfully by failing to comply with the statutory process for amending a certificate.
Appellants have established prejudice
{¶ 23} This court will not reverse an order of the board “unless the party seeking reversal shows that it has been or will be harmed or prejudiced by the order.” In re Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy Co., 139 Ohio St.3d 284, 2014-Ohio-1532, 11 N.E.3d 1126, ¶ 19. The board and Black Fork assert that even if the board erred by extending Black Fork‘s certificate by granting Black Fork‘s motion, appellants have not shown that they were prejudiced by the board‘s orders. For example, Black Fork argues that appellants were not prejudiced by the lack of a staff report because board staff was familiar with Black Fork‘s project and conducted investigations and filed staff reports in 2011 (for the original certificate), 2015 (for the amendment application in case No. 14-1591-EL-BGA), and 2017 (for the amendment application in case No. 17-1148-EL-BGA). According to Black Fork, if staff had had any objections to the two-year certificate extension, staff would have expressed those objections during one of those investigations.
{¶ 24} Appellants were harmed in at least two ways. First, they never received the benefit of a staff investigation and report regarding Black Fork‘s specific request to extend the certificate for two years past the initial expiration date. We have explained that the purpose of a staff report—in that case, in the context of a public utility‘s rate-increase application—is “‘to facilitate meaningful contest of rate increase applications by providing interested parties with the materials necessary for an informed challenge.‘” Ohio Consumers’ Counsel v. Pub. Util. Comm., 67 Ohio St.2d 153, 161, 423 N.E.2d 820 (1981), quoting Duff v. Pub. Util. Comm., 56 Ohio St.2d 367, 376, 384 N.E.2d 264 (1978). Here, appellants did not receive the materials necessary for an informed challenge. Further, we presume that a staff investigation and report is more than a mere formality. Therefore, the fact that staff investigated the separate and distinct issues raised in Black Fork‘s two amendment applications is not an appropriate substitute for an investigation of the specific issues raised in the motion filed by Black Fork in 2014 that is the subject of this case.
{¶ 25} Second, appellants have shown a realistic possibility of a different outcome but for the board‘s error in extending Black Fork‘s certificate by granting Black Fork‘s motion. For example, had the board treated the motion for an extension as an application for an amendment, the current setback provisions in
Appellants’ remaining propositions of law
{¶ 26} In appellants’ third proposition of law, they assert that the board may not extend a certificate absent a showing of good cause and that “because the Board‘s staff failed to generate the required report of its investigation, there has been no showing of good cause justifying the extension.” Because we determine that the board erred by not following the statutory process for amending a certificate, we need not reach this issue.
{¶ 27} In their fourth proposition of law, appellants claim that the board‘s orders in the present case and also those issued in the related proceedings have permitted Black Fork to evade the current turbine-setback provisions in
{¶ 28}
{¶ 29} We have long held that “[c]onstitutional questions will not be decided until the necessity for a decision arises on the record before the court.” State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 52 N.E.2d 980 (1944), paragraph two of syllabus. And we recently reiterated that “‘if it is not necessary to decide more, it is necessary not to decide more.‘” Capital Care Network of Toledo v. Dept. of Health, 153 Ohio St.3d 362, 2018-Ohio-440, 106 N.E.3d 1209, ¶ 31, quoting PDK Laboratories, Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in judgment). Because this case can be resolved on the issue whether the board properly extended Black Fork‘s certificate by granting its motion and because the board did not fully address the setback issues in the orders on appeal, we decline to decide in this appeal the applicability and constitutionality of the setback provisions in
{¶ 30} In sum, for the reasons explained above, we hold that the board acted unlawfully by extending Black Fork‘s certificate
Orders reversed and cause remanded.
O‘CONNOR, C.J., and KENNEDY, FRENCH, and DEWINE, JJ., concur.
KENNEDY, J., concurs, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion joined by O‘DONNELL, J.
KENNEDY, J., concurring.
{¶ 31} I agree with and join the majority opinion‘s analysis applying the plain meaning of the word “amendment” as well as its conclusion that the appellants in this case were prejudiced when the Power Siting Board extended the certificate issued to Black Fork Wind Energy, L.L.C., to construct a wind farm without first requiring Black Fork to file an application to amend the certificate. I write separately, however, to explain why
{¶ 32} 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.
{¶ 33}
{¶ 34}
{¶ 35} At issue in this case is whether Black Fork could seek a two-year extension of the time for it to commence construction of the facility by filing a motion or whether it was required to apply for an amendment of the certificate in order to extend it.
{¶ 36} Relevant here,
{¶ 37} Therefore, the obligation to “commence[ ] a continuous course of construction” within five years from the date the certificate was journalized is an express condition of the certificate, and because the motion for a two-year extension of the time for commencement of construction of the facility sought to amend that certificate, Black Fork was required to file an application for amendment in accord with
{¶ 38} The dissenting opinion, however, focuses on
(A) Upon the receipt of an application complying with section 4906.06 of the Revised Code, the power siting board shall promptly fix a date for a public hearing thereon, not less than sixty nor more than ninety days after such receipt, and shall conclude the proceeding as expeditiously as practicable.
(B) On an application for an amendment of a certificate, the board shall hold a hearing in the same manner as a hearing is held on an application for a certificate if the proposed change in the facility would result in any material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of such facility other than as provided in the alternates set forth in the application.
(C) The chairperson of the power siting board shall cause each application filed with the board to be investigated and shall, not less than fifteen days prior to the date any application is set for hearing submit a written report to the board and to the applicant. A copy of such report shall be made available to any person upon request. Such report shall set forth the nature of the
investigation, and shall contain recommended findings with regard to division (A) of section 4906.10 of the Revised Code and shall become part of the record and served upon all parties to the proceeding.
{¶ 39} The dissent reasons that because
{¶ 40} The problem with that analysis, however, is that the legislature did not hide substantive limitations on the amendment of a certificate in a provision that specifically addresses when “the board shall hold a hearing,”
{¶ 41} Applying these cardinal principles of statutory construction reveals that
{¶ 42} To support its position, the dissenting opinion notes that its view is consistent with the board‘s interpretation of
{¶ 43} But here, the issue before us is neither highly specialized nor one related to the board‘s enforcement responsibility but rather requires us to engage in a familiar function—statutory construction—in which we apply fundamental 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
{¶ 44} Moreover, the dissenting opinion would rely on the board‘s “established administrative practice of considering certificate extensions based on motions rather than on amendment applications,” noting that “‘long-standing administrative interpretations are entitled to special weight,‘” dissenting opinion at ¶ 59, quoting Cleveland v. Pub. Util. Comm., 67 Ohio St.2d 446, 451, 424 N.E.2d 561 (1981). Likewise, the board urges that we should not overturn its “practice interpreting its enabling statutes.” However, such deference would disregard the legislative checks imposed on agency rulemaking. The General Assembly has delegated to the board the authority to draft rules that have the force of law.
{¶ 45} In any case, an agency cannot change the meaning of a statute or a rule simply by misapplying it repeatedly; because an agency has no authority beyond that which is conferred by statute, it cannot—through an errant course of practice—grant itself power withheld by the General Assembly. See State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 171, 724 N.E.2d 411 (2000). Rather, this court since 1917 has recognized that the authority of an administrative agency is limited to those powers granted to it by statute:
In construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved, not in favor of the grant, but against it. It is one of the reserved powers that the legislative
body no doubt had, but failed to delegate to the administrative board or body in question.
State ex rel. A. Bentley & Sons Co. v. Pierce, 96 Ohio St. 44, 47, 117 N.E. 6 (1917); accord D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 40.
{¶ 46} Here, no statute gives the board authority to modify the certificate by granting Black Fork‘s motion. Rather, the only method specified by the relevant statute,
{¶ 47} Contrary to the dissent‘s reasoning, it does not make sense to require the same public notice, investigation, and review as that applicable to an initial application when a certificate holder proposes some change to the facility—regardless of how material the change is—but then to permit modification of all of the other substantive conditions of a certificate by granting a certificate holder‘s motion without complying with any of the procedural safeguards mandated for granting a certificate in the first instance. There is no indication that the legislature intended to dispense with notice to stakeholders and the investigation required by statute when the board considers a substantive modification to the certificate, regardless of whether the certificate holder proposes a change in the facility or proposes to amend a condition of the certificate. And the dissenting opinion‘s position that the board‘s interpretation of
{¶ 48} By deferring to the board‘s interpretation of law and past practice, the dissent disregards the judicial and legislative checks on the executive branch that are essential to our tripartite form of state government. A majority of this court therefore correctly rejects the dissent‘s reasoning.
DEWINE, J., concurs in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 49} I respectfully dissent. The Power Siting Board interprets
{¶ 50} As a starting point, the majority opinion notes that the General Assembly has not defined “amendment” in
{¶ 51} Relying on
{¶ 52}
On an application for an amendment of a certificate, the board shall hold a hearing in the same manner as a hearing is held on an application for a certificate if the proposed change in the facility would result in any material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of such facility other than as provided in the alternates set forth in the application.
(Emphasis added.) The board argues that the italicized portion of the statute demonstrates that the legislature presupposed that an “amendment” of a certificate is at issue only when changes in the facility are proposed. Therefore, argues the board,
{¶ 53} Reading the statute in context, particularly the phrase “the proposed change in the facility,”
{¶ 54} The phrase ”the proposed change in the facility” (emphasis added), as used in
{¶ 55} The concurring opinion speculates that “the legislature did not hide substantive limitations on the amendment of a certificate in a provision that specifically addresses when ‘the board shall hold a hearing.‘” Concurring opinion at ¶ 40, quoting
{¶ 56} Here, the board determined that an amendment of a certificate is at issue only when the proposed alteration to the certificate relates to a proposed change to the facility. The board‘s interpretation is consistent with the statutory scheme, and, as noted above, statutes relating to the same subject matter should be construed by considering them together. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, at ¶ 8.
{¶ 57} Moreover, the board‘s interpretation of the statute is workable whereas the majority opinion‘s interpretation is problematic. Surely, not every proposed minor revision or modification, change made by addition or deletion, correction of a mistake or mistakes, insignificant reformation, nonsubstantive adjustment, or other change or alteration in any way, especially in phraseology, to the original certificate necessitates that the certificate holder file an application for an amendment or that the board treat a motion to change a certificate as if it were an application to amend it. Having to conduct an investigation before approving an “amendment” every time a certificate holder requests a minor change to a certificate would create a substantial burden for the board in certain cases and, for that reason, would be unworkable in those cases. More importantly, such a reading of
{¶ 58} The concurring opinion states that “an application for an amendment is required to be filed only when the proposed change to the certificate amounts to an ‘amendment’ of it.” Concurring opinion at ¶ 47. I respectfully disagree on this point because, as stated above,
{¶ 59} Further, the board has an established administrative practice of considering certificate extensions based on motions rather than on amendment applications. The board states in its brief that it has considered such motions in seven other siting cases starting with an order it issued in 1996. “This court has long recognized that long-standing administrative interpretations are entitled to special weight.” Cleveland v. Pub. Util. Comm., 67 Ohio St.2d 446, 451, 424 N.E.2d 561 (1981). This principle should not be lightly disregarded, especially considering that certificate holders have relied on the board‘s prior administrative practice in many situations and could be prejudiced by a significant change to the established process when no prior warning of the change has been given.
{¶ 60}
{¶ 61} In conclusion, after reasonably interpreting
{¶ 62} Here, the certificate extension does not involve a change “in the facility” and the board has acted in accordance with its longstanding administrative practice, which does not conflict with the statute. Hence, the board properly granted Black Fork‘s motion to extend the time to commence construction.
{¶ 63} I would affirm the board‘s decision and, therefore, I respectfully dissent.
O‘DONNELL, J., concurs in the foregoing opinion.
Benesch, Friedlander, Coplan & Aronoff, L.L.P., John F. Stock, and Mark D. Tucker, for appellants.
Michael DeWine, Attorney General, William L. Wright, Section Chief, and Werner L. Margard, Thomas G. Lindgren, and Robert A. Eubanks, Assistant Attorneys General, for appellee Ohio Power Siting Board.
Vorys, Sater, Seymour & Pease, L.L.P., Michael J. Settineri, and Daniel E. Shuey, for intervening appellee, Black Fork Wind Energy, L.L.C.