Ohio Power Siting Board
On Tuesday, May 26, the Ohio Supreme Court issued a slip opinion, In re Application of Oak Run Solar Project, L.L.C. The decision concerns a proposed 800-megawatt, 6,050-acre solar project in Madison County. The proposed facility would also include a 300-megawatt alternating-current battery-energy storage system and allow for crops and livestock grazing among the solar panels. In 2022, Oak Run applied for approval from the Ohio Power Siting Board to construct their proposed project. Ultimately, the Power Siting Board approved the project, and the Board of Trustees for Somerford, Deercreek, and Monroe Townships, along with the Madison County Board of Commissioners appealed the decision to the Ohio Supreme Court.
What were the local governments’ objections to the project?
The three boards of township trustees and the Madison County Board of Commissioners, which the court refers to as “the local governments,” cited four different reasons why the Ohio Power Siting Board should have rejected Oak Run’s application. Firstly, the local governments asserted that Oak Run failed to take steps to minimize adverse visual impacts as required under the Ohio Administrative Code (OAC), arguing that Oak Run should have included a “vegetative screening plan” and comprehensive outreach to residents regarding the screening plan in its application. Secondly, the local governments argued that the Power Siting Board did not obtain the required visual-impact information to assess the proposed facility from public vantage points, as is required under the OAC. In their third claim, the local governments alleged that the Power Siting Board erred in approving the project because Oak Run’s application did not contain enough information about how the project would affect water quality, which is required for the Board to make its legally required determination about the environmental impacts of the project. Finally, the local governments feel that because the Power Citing Board did not obtain plant and wildlife information required under OAC, the Board could not make an informed decision about the environmental impacts of the project as required by Ohio law.
How did the Ohio Supreme Court respond to the local governments’ objections?
Ultimately, the majority of the Court only found the second argument persuasive. OAC 4906-4-08 requires applicants to provide “photographic simulations or artist's pictorial sketches of the proposed facility from public vantage points that cover the range of landscapes, viewer groups, and types of scenic resources found within the study area” when providing information on the visual impacts of the proposed project. You can read the OAC section here. The local governments specifically pointed out that Oak Run did not provide the Power Citing Board with photographs or sketches showing the project’s substations, with structures ranging in height from 85 to 115 feet. Without these simulations, the local governments argued that the Power Citing Board could not make the determinations required under the Ohio Revised Code (ORC). ORC 4906.10, available here, requires the Ohio Power Citing Board to determine the nature of the probable environmental impact of a utility facility, whether the facility has the minimum amount of environmental impact possible, and whether the facility will serve the public interest, convenience, and necessity. In response, Oak Run made several claims, including the argument the substations do not count as “facilities” under Ohio law and the administrative code.
The Ohio Supreme Court rejected Oak Run’s arguments, including their contention that the substations are not “facilities,” noting that ORC 4906.01 specifically includes “associated facilities” in its definition of a “large solar facility,” and OAC 4906-01-01 specifically includes substations in its definition of “associated facilities.” The Court reasoned that “[w]hen considering these definitions together, it is clear that the substations for Oak Run’s project are facilities and Oak Run was therefore required to provide the board with the visual impact information.”
The Court found that the substations on the Oak Run Project were “facilities,” and for the Power Citing Board to determine the environmental and public impacts of a facility, the administrative rules require those applying to build a solar facility to provide “photographic simulations or artist's pictorial sketches of the proposed facility.” Since Oak Run did not include photo simulations or sketches of the substations, the Court reversed the Ohio Power Siting Board’s approval of the project, sending the matter back to the Board to obtain more visual information from Oak Run before approval.
How will this decision affect solar projects going forward?
Although the Ohio Supreme Court’s majority opinion reversed part of the Ohio Power Siting Board’s approval of the Oak Run solar project due to the lack of photographic simulations and pictorial sketches of the substations, the ruling is hardly a strike against all current and future solar projects in Ohio. The Court remanded the decision back to the Power Siting Board, who will give Oak Run more time to provide photographic and pictorial evidence of all the proposed facilities. If, after considering the additional information, the Power Siting Board determines that the facility has minimal environmental impact and serves public interest, convenience, and necessity, the Board can approve the project and construction can go forward.
To understand how this decision might affect future solar projects in Ohio, it’s also important to examine the other local government claims that the Court did not find persuasive. In particular, the majority opinion’s treatment of the local governments’ claims that Oak Run did not adequately address possible effects on water quality and plants and wildlife is interesting. Although the Court found that visual simulations of all the facilities are required, the same is not the case regarding evidence of water quality and environmental impacts. The Court found that even if Oak Run “did not strictly comply” with the OAC in including all the required information to the Power Siting Board about how the project might affect water quality or plants and wildlife in the surrounding area, the local governments did not show that they suffered harm due to these omissions. This indicates that future groups appealing Power Siting Board solar decisions cannot just rely on the fact that environmental impact information required by the OAC is missing, but that they will have to prove themselves why the project is harmful to local water quality, plant, and animal life.
Finally, it’s important to note that the Ohio Supreme Court’s decision in this case was far from unanimous. Only three of the seven justices—Fischer, DeWine, and Deters—completely signed on to the majority opinion. Justice Hawkins concurred in part and dissented in part, writing that more information on the environmental, water, plant, and wildlife impacts was required by law, and that Oak Run also did not adequately address safety concerns. Justices Shanahan joined Justice Hawkins, as did Chief Justice Kennedy, who also included her own opinion. Justice Brenner joined Justice Fischer’s opinion in part, but found Oak Run’s visual evidence sufficient. Given this narrow majority, a Court with a slightly different makeup could result in a completely different ruling on these questions.
If you’d like to dig in deeper to the case, the Ohio Supreme Court’s slip opinion (“slip” means that it is not final and is still subject to formal revision), is available here.
Tags: solar development, solar energy, solar regulations, solar, Ohio Power Siting Board, Ohio Supreme Court
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The road to building a 175 MW 1,200 acre solar development project in Greene County just became a bit longer for Vesper Energy, the company behind the project. On September 6, the Ohio Supreme Court dismissed the company’s appeal of a ruling by the Ohio Power Siting Board (OPSB) that denied a certificate of approval for the project. The Supreme Court dismissed the case for “lack of jurisdiction.”
The Ohio Power Siting Board denied the Kingwood Solar application last December on grounds that the project would not serve the “public interest, convenience, and necessity” due to general opposition from the community, and especially the clear opposition of the Greene County commissioners and the three townships where the project would locate. As permitted by Ohio law, Kingwood Solar and several other parties to the case requested a rehearing on the OPSB’s decision.
The OPSB granted the rehearing request on Feb. 7 “for the purpose of affording more time to consider the issues raised.” However, Kingwood Solar appealed the board’s decision, stating that the OPSB failed to issue its decision on the rehearing request within the thirty days required by Ohio Revised Code 4903.10. Kingwood Solar raised ten arguments against the OPSB’s denial of the project, asking the Ohio Supreme Court to declare that denial to be “unlawful or unreasonable.”
The OPSB asked the Court to dismiss the Kingwood appeal, arguing that until the OPSB issued a decision on the rehearing, the Court did not have jurisdiction to hear the case. The Supreme Court granted the OPSB’s motion to dismiss. The Court did not issue a full opinion in support of its decision to dismiss the case, but referred to a 1988 Ohio Supreme Court opinion holding that the Supreme Court does not have jurisdiction over a case while a rehearing request is pending with the OPSB,
What does the dismissal mean for Kingwood Solar? Vesper Energy must now wait for the OPSB to make a decision on the rehearing requests. The OPSB could affirm its earlier decision to deny the permit or could reverse that decision. Currently, the OPSB has not scheduled a new hearing for the application.
Tags: Kingwood Solar, solar development, Ohio Power Siting Board, OPSB, solar energy, Ohio Supreme Court
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A long process to update Ohio’s regulations for solar energy facility development has nearly reached its end. On July 20, the Ohio Power Siting Board (OPSB) adopted new rules that include revisions to rules that apply to solar facilities under its jurisdiction—those that have a nameplate capacity of 50 megawatts or more. The rules will next go to the Ohio legislature’s Joint Committee on Agency Rule Review (JCARR) for a final review before they can become effective.
The OPSB began the rules review in 2020. The process included stakeholder meetings, public workshops, a draft proposal of revisions, and a review of comments to the draft rules. Many parties and interested individuals followed the process, and the agency received formal input from 20 parties and over 400 informal public comments. The OPSB recognized that the rules review “inspired a robust discussion from numerous interested stakeholders.”
What are the proposed changes?
OPSB summarizes the rule changes it adopted as follows:
- Public information: Siting project applicants must host two public informational meetings for each standard certificate application. The first meeting will describe the scope of the project. The second meeting, held at least 90 days before an application filing, will focus on the specifics of the application.
- Site grading: Applicants must provide a preliminary grading plan that describes maximum graded acreage expectations.
- Drainage and field tile: Applicants must describe and map field drainage systems and demonstrate how impacts to those systems will be avoided or mitigated, describe how damaged drainage systems including field tile mains and laterals will promptly be repaired to restore original drainage conditions and describe the data sources and methods used to obtain information for field drainage system mapping.
- Vegetation management: Applicants must prevent the establishment and spread of noxious weeds within the project, including setback areas, during construction, operation, and decommissioning. Applicants must provide annual proof of weed control for the first four years of operation with the goal of weed eradication significantly completed by year three of operation.
- Noise: Noise limits for renewable energy facilities cannot exceed the greater of 40 decibels (dBA) or the ambient daytime and nighttime average sound level by more than 5 dBA.
- Surface water protection: Solar energy facility applicants must develop and implement a stormwater pollution prevention plan, a spill prevention control and countermeasure plan, and a horizontal directional drilling contingency plan, to minimize and prevent potential discharges to surface waters.
- Fencing: Solar energy facility perimeter fencing must be small-wildlife permeable and aesthetically fitting for a rural location.
- Setbacks: Solar energy facility panel modules must be setback at least 50 feet from non‑participating parcel boundaries, at least 300 feet from non-participating residences, and at least 150 feet from the edge of the pavement of any road within or adjacent to the project area.
- Regulatory: Compliance monitoring and reporting requirements to ensure applicants meet the commitments and conditions contained in each OPSB certificate.
What happens next?
Parties have 30 days from the July 20 adoption date to file a request for a rehearing on OPSB’s decision to adopt the rules. A rehearing request to OPSB must be based upon an argument that the rules are unreasonable or unlawful. Absent a rehearing request, the OPSB will forward the rules package to JCARR, a committee consisting of five representatives and five senators from the Ohio legislature. JCARR must hold a public hearing to hear comments on the rules between 31 and 45 days after receiving them, then must review the rules to ensure they don’t exceed OPSB’s authority, conflict with existing rules or legislative intent, and include analyses of fiscal and business impacts. The committee will next either approve the rules or recommend invalidation of some or all of the rules by the Ohio legislature, and both the House and Senate would have to pass resolutions to follow JCARR's invalidation recommendations. If JCARR approves the rules, they’ll go into effect right away.
Follow the JCARR rules review process at https://www.jcarr.state.oh.us/.
Follow this link to read the OPSB Order adopting the rules, which contains the revised rules beginning on page 14.
The entire history of the rules revision is available in Case Record 21-0902-GE-BRO.
The solar energy “boom” in Ohio continues to encounter opposition from local communities that would be home to large-scale solar developments. Yesterday, the Ohio Power Siting Board (OPSB) denied a solar project application in Defiance County due to “general opposition by local citizens and governmental bodies.” Just before the holidays, a project in Greene County met the same fate. The cases now bring the number of solar project rejections in Ohio to three. Each one highlights the role community opposition can play in project denial, particularly when local governments are part of that opposition.
How does OPSB review a proposed solar project?
The OPSB is responsible for reviewing applications for solar energy projects that are over 50 MW in capacity. Currently, the members of the OPSB include the chair of the Public Utilities Commission of Ohio, directors of the EPA and departments of Agriculture, Development, Health, and Natural Resources, and a public member, along with four non-voting legislators. In the future, a county commissioner and township trustee will also join in the OPSB review process.
Ohio law requires the OPSB to analyze eight criteria when reviewing an application and deciding whether to grant a certificate to construct a major utility facility. The law states in Ohio Revised Code 4906.10(A) that OPSB shall not grant a certificate unless it finds and determines all of the following:
(1) The basis of the need for the facility if the facility is an electric transmission line or gas pipeline;
(2) The nature of the probable environmental impact;
(3) That the facility represents the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives, and other pertinent considerations;
(4) In the case of an electric transmission line or generating facility, that the facility is consistent with regional plans for expansion of the electric power grid of the electric systems serving this state and interconnected utility systems and that the facility will serve the interests of electric system economy and reliability;
(5) That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters and under section 4561.32 of the Revised Code. In determining whether the facility will comply with all rules and standards adopted under section 4561.32 of the Revised Code, the board shall consult with the office of aviation of the division of multi-modal planning and programs of the department of transportation under section 4561.341 of the Revised Code.
(6) That the facility will serve the public interest, convenience, and necessity;
(7) In addition to the provisions contained in divisions (A)(1) to (6) of this section and rules adopted under those divisions, what its impact will be on the viability as agricultural land of any land in an existing agricultural district established under Chapter 929 of the Revised Code that is located within the site and alternative site of the proposed major utility facility. Rules adopted to evaluate impact under division (A)(7) of this section shall not require the compilation, creation, submission, or production of any information, document, or other data pertaining to land not located within the site and alternative site.
(8) That the facility incorporates maximum feasible water conservation practices as determined by the board, considering available technology and the nature and economics of the various alternatives.
Once all required elements of an application for a certificate are submitted and the application is complete, which can take many months, the OPSB staff and board begins its evaluation of the application to decide whether to grant the certificate. The review process, which might include intervening parties and multiple hearings, can last for many months or even a year or more. During that time, the OPSB must examine the application to determine if it meets the criteria in ORC 4906.10(A), relying on the expertise and recommendations of OPSB technical staff.
Recently approved solar projects
In December, the OPSB approved the application of Springwater Solar, a 155 MW solar project proposed to be built on 1,085 acres in Madison and Franklin counties, holding that the project met all of the criteria in ORC 4906.10(A). The decision brings the total of approved solar projects in Ohio to 34, representing 6,175 MW to be built on 63,554 acres, as illustrated on the map below. The map also displays additional pending applications totaling 3,139 MW and 29,076 acres.
Source: Ohio Power Siting Board, available at https://opsb.ohio.gov/about-us/resources/solar-farm-map-and-statistics.
Recently denied solar projects
Two solar project applications recently reviewed by OPSB did not receive a green light from the board. In December, the OPSB denied an application by Kingwood Solar that proposed to construct a 175 MW solar facility on 1,200 acres in Greene County. And on January 18, the OPSB denied a Cepheus Energy proposal to construct a 68 MW solar project on 649 acres in Defiance County. Before those two rejections, the OPSB had only previously denied one solar project application—the Birch Solar application rejected last October. In all three instances, the OPSB based its denial on ORC 4906.10(A)(6), stating that the projects would fail to serve the “public interest, convenience, and necessity” due to general opposition.
In the Cepheus application, the board focused on local public interaction and participation, reviewing public testimony and 600 pages of public comments on the project. The board also noted that seven local governments had expressed concern or opposition to the project, including the Defiance Soil and Water Conservation District, Delaware and Sherwood Township trustees, Defiance County Economic Development Office, Defiance County Board of Commissioners, Delaware Township Fire Department, and Sherwood Area Economic Development Corporation.
The interests of these impacted local government bodies was “especially compelling” given that the organizations have the responsibility for preserving the health, safety, and welfare of their citizens, OPSB noted. Stating that there was “general opposition from local citizens and governmental bodies” and that local impacts would outweigh the project’s benefits, the board concluded that the project would not serve the public interest, convenience, and necessity.
The Cepheus rejection is similar to the Kingwood Solar project denied by OPSB in December. In that case, the board reviewed Kingwood’s assertions of the positive economic impacts and renewable energy choices the project would bring the community, then focused on local responses to the project. About 76% of those testifying during a 6.5-hour hearing were opposed to the projects and expressed an overarching concern that the project was not compatible with local land use plans and would “unalterably change the rural nature of the community.” The board also noted concerns by the Citizens for Greene Acres, a local group that intervened in the case, regarding the unique characteristics of the wildlife, parks, recreation, cultural, and historic areas that would be affected and the high density of residents that would reside within 500 feet of the project.
But once again, a critical concern for OPSB was the clear opposition of local governments impacted by the project. Cedarville Township, Xenia Township, Miami Township, and the Greene County Commissioners had all intervened in the case and adopted resolutions opposing the project. Although Kingwood Solar had agreed to address 39 conditions of development that it had offered in a Stipulation agreement, none of the local governments agreed to the Stipulation and instead opposed approval of the project. OPSB concluded that local opposition, “especially as demonstrated by Greene County and the three townships affected by the project,” warranted a conclusion that the project would not serve the public interest, convenience, and necessity.
Now what happens?
It’s typical in a rejection of a utility application for the developer applicant to exercise the right to request a rehearing. That has already occurred for the Birch Solar and Kingwood Solar projects, and we can expect a rehearing request for the Cepheus denial that just occurred on January 19. Interestingly, it was not just the solar developer that requested a rehearing of the Kingwood project application—Greene County, the affected townships, and the Citizens for Greene Acres also requested a rehearing. While those parties stated support for the decision of the OPSB that denied the certificate, they argue that in its findings, OPSB failed to determine that there were many other grounds for denying the certificate such as incompatibility with local land use planning, incapacitation of 1,025 acres of productive farmland, and negative local economic impacts.
Now we await the determinations by OPSB on the rehearing applications. The projects are each on hold, and construction cannot move forward unless the OPSB reverses its decision and approves the applications.
More questions
The recent decisions by OPSB leaves us asking a few questions. Does three rejections establish a trend in solar project denials due to community opposition? Did the communities involved in the 34 solar projects approved by OPSB oppose those projects? Do the local communities in the projects that are still pending before the OPSB oppose or support the projects, and how will community voices affect the review of those projects? While we don’t have the answers, we’ll keep monitoring developments in large-scale solar development as we consider these important questions.
Tags: solar energy, solar leasing, OPSB, Ohio Power Siting Board, renewable energy
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