Supreme Court allows Champaign County wind farm to proceed

The court ruled there was not enough evidence to overturn the state’s initial decision.

A controversial wind farm in Champaign County took another step forward Wednesday after the Ohio Supreme Court ruled 5 to 2 to uphold a state board’s decision to grant a permit for the project.

It was the second time the wind farm’s fate came down to a decision by the court. The justices issued a similar ruling in 2012, after opponents raised concerns about the project’s safety, and whether the Ohio Power Siting Board followed proper procedures when granting a certificate for the project.

In both cases, the court sided with the OPSB and the wind farm’s developers, arguing opponents did not provide sufficient evidence to overturn the state’s initial decision.

Champaign County prosecutors did not return a call seeking comment Wednesday.

Officials from Everpower, the developer of the proposed wind farm, said the ruling is one more step toward building the wind farm.

“We are delighted with this validation of the wind farm proposal and look forward to work with the community to resolve outstanding issues so we can move to construct this clean energy project that will generate millions in tax and local revenue for the area over the life of the project,” said Jason Dagger, project manager for Everpower.

Chris Walker, an attorney representing opponents of the wind farm, said it is still unclear if the project will move forward because of other lawsuits.

Justice Judith French wrote the majority opinion in Wednesday’s decision. “After reviewing the record and considering the parties’ arguments, we hold that appellants have established neither that the board’s order is unlawful or unreasonable nor that the board’s alleged errors affected the outcome of the proceeding,” French wrote.

Justice Sharon Kennedy wrote a dissenting opinion, arguing the OPSB improperly rejected evidence of a “blade throw” incident at another wind farm. Blade throw occurs when a turbine blade or piece of the blade tears off and can be thrown from a turbine.

“In my view, the board’s decision to grant the certificate was unreasonable and unlawful because the blade-throw setbacks the board adopted and the default method to calculate background noise in a rural area that the board approved are unsupported by the record and are against the manifest weight of the evidence,” Kennedy wrote.

Kennedy cited an incident at the Timber Road Wind Farm in Paulding County, Ohio in 2012 in which a wind farm employee in the state of Oregon remotely started a wind turbine after it had shut down due to a blade failure. That caused the turbine to throw a 6.5-pound blade as far as 764 feet, she noted.

The proposed Champaign County wind farm is split into two phases. Combined, it would include more than 100 turbines spread across several townships in Champaign County. Proponents have argued it could add additional revenue for local schools and local governments, provide economic benefits of about $55 million and power as many as 50,000 homes per year.

But it has also divided neighbors throughout the county, and opponents have raised concerns the turbines would be allowed to be built too close to homes, creating noise and safety concerns. Champaign County officials also raised concerns about how the wind farm would be decommissioned once the project ends, and whether developers would have money set aside to tear down the turbines at the project’s end.

French’s majority opinion split opponents’ objections into four categories including setbacks, noise concerns, whether the project met the public interest and whether the OPSB followed proper procedure when permitting the project. But in each case, she argued county officials and opponents failed to provide sufficient evidence to overturn the OPSB’s initial ruling.

“The county and the neighbors have not proven that it is necessary to reopen the record to engage in more discovery or to hear more evidence,” French wrote. “Accordingly, we affirm the board’s order.”

Walker said the project could still be halted because two other appeals are still pending with the Ohio Supreme Court. They include one in which opponents have argued the OPSB and project developers did not follow the proper procedures when extending a deadline to begin construction on the project’s first phase. If opponents win that appeal, developers would have to begin the process to apply for the project from the beginning, Walker said.

“There are still plenty areas of uncertainty that should give the developers pause in moving forward,” Walker said.

Jack Van Kley, who is also representing opponents, accused the OPSB of preventing both sides an equal opportunity to present evidence in the case.

“We think the OPSB allowed wind companies in this case to hide evidence about the hazards of their facility, and the board let them get away with that,” Van Kley said.

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