A nearly unanimous Ohio Supreme Court has signed off on North America’s first project designed to test the viability of wind farms in the Great Lakes.
The 6-1 decision approving a six-turbine wind project in Lake Erie near Cleveland by the Lake Erie Energy Development Corporation (LEEDCo) goes against opponents who said there wasn’t enough required data for a permit.
In their lawsuit, two residents of Bratenahl along Lake Erie, east of Cleveland, said the permit for the first-of-its-kind Icebreaker wind farm was awarded to LEEDCo in 2020 without enough data showing its impact on birds and bats.
Their attorney, Mark Tucker, told the justices in oral arguments in December, "There is not one person in this courtroom or anywhere for that matter that can tell you how many birds and bats fly through the rotor swept zone at the project site."
But Cameron Simmons, representing the Ohio Power Siting Board, said in court that the board got the required data and asked LEEDCo to monitor bird and bat activity — before and during construction — before the turbines can be operated.
“Essentially, appellants disagree with that factual conclusion," Simmons said. "Their disagreement does not equate to an abuse of discretion on the part of the board."
The majority sided with LEEDCo.
Democratic Justice Jennifer Brunner noted the project would be the first freshwater, offshore, wind-powered electric generation facility in North America, and that the Ohio Power Siting Board being flexible and considering permits on a case-by-case basis is acceptable, especially when there are new issues involved.
Brunner wrote: "[T]he board determined that Icebreaker’s evidence and the conditions imposed under the revised stipulation showed sufficient compliance with the statutory requirements. On appeal, it is the residents' burden to show that the board erred, but the residents have failed to do so."
The lone dissent was Republican Justice Sharon Kennedy, who wrote that state law doesn't relax requirements for “demonstration projects,” but that the criteria "apply to all proposed major utility facilities."
Kennedy added: "[I]t may make good policy to loosen the rules for an unprecedented project”, but that the law has limitations, so lawmakers should have made that decision, not the Ohio Power Siting Board.
