The Supreme Court of Ohio on Dec. 27 reversed and sent back the Ohio Power Siting Board's decision to grant a two-year extension of the construction certificate for the 200-MW Black Fork Wind project.
The court ruled that the decision by the Ohio Power Siting Board constitutes an amendment to the certificate and therefore the board "acted unlawfully in granting Black Fork's motion rather than following the statutory procedures for amending a certificate."
The board initially approved the project in January 2012. The state Supreme Court upheld the decision in late December 2013, ruling against residents who claimed they were denied their right to due process during regulatory hearings.
The siting board, however, adopted a set of stipulations in its 2012 order that included a condition that the certificate "shall become invalid" if the applicant, Black Fork Wind Energy LLC, had not begun construction of the project within five years of the recorded decision.
Black Fork Wind filed a motion in September 2014 to extend its certificate by two years, which would institute a new "commencement-of-construction deadline" of Jan. 23, 2019. In late March 2016, the board granted the request and later denied applications for rehearing.
"Under any common, ordinary, and accepted meaning, the board's actions here amounted to an 'amendment' of Black Fork's certificate," the court wrote in its order. "And because the controlling statutes require the filing of an application to amend a certificate, the board acted unlawfully by amending the certificate based on Black Fork's motion. Black Fork should have instead filed an amendment application, and board staff should have investigated the application and issued a report."
The court also found that the appellants in the case "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," the court wrote. "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."
The court pointed out that the project was able to "evade current turbine-setback requirements" by avoiding a more thorough review of the application.
"Alternatively, appellants assert that a consequence of the board's error in granting Black Fork's motion is that the extension is invalid, which, according to appellants, caused the certificate by its original terms to have expired in January 2017," the court wrote. "Although ultimate resolution of the merits of those issues is beyond the scope of this appeal, they are relevant to our determination of prejudice." (Slip Opinion No. 2018-OHIO-5206)
The Black Fork Wind project, planned for Crawford and Richland counties in north-central Ohio, is owned by Capital Power Corp.