A regulatory board’s rejection of a permit for a large solar farm in southwestern Ohio has ?“essentially rewritten” state law to give local governments veto power over clean energy projects, an attorney for the project’s developer argued last week before the Ohio Supreme Court.
The Ohio Power Siting Board’s 2022 decision denying Vesper Energy the right to build a 175-megawatt solar facility in Greene County is the subject of a high-stakes legal challenge with potentially ?“devastating” consequences for the state’s ability to grow its electricity generation capacity, the developer’s attorney said.
“All of Ohio’s energy infrastructure will be affected by this decision,” said Michael Settineri, who represents Vesper’s Kingwood Solar project, in an oral argument before the court on March 13.
The company claims the siting board failed to follow state law in its analysis of whether its project is in the public interest — one of eight criteria that power generation projects must meet to receive a site permit. Instead of evaluating the merits of opponents’ arguments, the board used the mere existence of local government opposition as reason to deny the permit, Kingwood Solar’s attorney said.
A lawyer for the Ohio Power Siting Board argued that it has wide discretion to make policy judgments and that members used ?“a broad lens” to make their decision.
Local criticism has killed multiple Ohio solar projects
Renewable energy permitting has become especially difficult in Ohio over the last four years. A 2021 law lets counties block most new utility-scale wind and solar energy projects before they even get to the Ohio Power Siting Board. Others, like Kingwood Solar, have been denied based on local opposition, even though they are exempt from that part of the law because they filed permit applications or got in the grid operator’s queue prior to the legislation’s passage.
In 2022, the board found that the proposed Kingwood Solar facility met all the other legal requirements for a permit, yet it concluded ?“that the unanimous opposition of every local government entity” bordering the project was ?“controlling” on the public interest question. The board denied the permit.
Settineri urged the court to reverse the Ohio Power Siting Board’s decision, arguing that it was clearly not supported by evidence. And, as a legal matter, the board essentially rewrote the law for granting or denying a permit in a way that gives local governments control that they shouldn’t have, he said.
Justice Jennifer Brunner noted another part of Ohio law that says local governments can’t require their own consent for the construction of power facilities. When the board’s Kingwood Solar decision said ?“that unanimous opposition is controlling, that actually infers that consent is required by the locality. Isn’t the board violating the statute?” she asked Settineri.
He answered,“The way I read the board’s decision, it is giving the local governments veto power … contrary to the concept of a state siting regimen.”
Renewable developer says Ohio regulators failed to consider evidence
The board’s ruling was also ?“internally inconsistent,” Settineri said. The board claimed it gave weight to the ?“vigor and rationale” of local governments’ objections, which included worries about visual impacts, preservation of agricultural land, and construction.
But the solar developer presented experts and other evidence addressing those topics during a 2022 hearing in the case. It was also willing to accept permit conditions to minimize any impacts. As a result, the board sided with the developer on those issues in its findings on statutory criteria other than public interest, including considerations related to agriculture and the environment, Settineri said.
“There has to be evidence, and the board has to consider the evidence,” Settineri said, arguing that the fact some people say they don’t want the project shouldn’t be enough to decide the case.
Judge Marilyn Zayas, a court of appeals judge sitting in for Justice Patrick DeWine, who recused himself, asked Stephen Funk, the lawyer representing the Ohio Power Siting Board, whether the board is ?“able to weigh the factors any way they wish.”
Funk told Zayas that the board has broad discretion, and it ?“made a policy judgment that this would not serve the public interest” after considering the vigor and rationale of arguments by the local opposition.
Brunner appeared skeptical of Funk’s efforts to make it seem as if the board members did more than cede to local governments’ opposition. The board didn’t say it was giving those governmental entities veto power, ?“but in effect they did,” she countered.
Responding to questions from Chief Justice Sharon Kennedy, Funk said each permitting case is considered individually. He also said public comments weren’t used as evidence by the board and didn’t determine the outcome.
On rebuttal, Settineri stressed that, in light of the rest of the board’s decision on Kingwood Solar, there is no evidence backing up the claim that the vigor and rationale of local governments’ opposition meant that the project would not serve the public interest. ?“If I yell loud enough, does that give me a win?” he asked.
The board appeared to accept local objections at face value, said Chris Tavenor, general counsel at the Ohio Environmental Council, which is not a party to this case. ?“The evidence on the record needs to be interrogated closely to see whether what the government is bringing forward is factually accurate and correct.”
“The board needs to actually weigh reasons for opposition,” Tavenor added. ?“The mere existence of opposition or support shouldn’t be enough.”
A looming decision
The Ohio Supreme Court will debate the case and is expected to come out with a decision in the coming months.
A decision against Kingwood Solar would establish a legal precedent that makes it much harder for companies to overcome local pushback, which has often been fueled by misinformation. An adverse ruling for the solar developer also would continue the uncertain regulatory standards and framework from the past several years.
Layne Ashton, a senior project development advisor focused on utility-scale solar at Engie North America, said his company would be very cautious about moving ahead with new facilities in Ohio.
“We’d do some significant due diligence up front” for any potential projects in the state, he said. That would include testing whether local officials would welcome them. The court’s judgment will also impact the broader legal question of whether Ohio Power Siting Board decisions must be based on evidence, versus politics or opinions.
