In 6-1 decision, Ohio Supreme Court approves Icebreaker wind project in Lake Erie

In 6-1 decision, Ohio Supreme Court approves Icebreaker wind project in Lake Erie

The Ohio Supreme Court ruled Wednesday that the state's permit to build North America's first freshwater, offshore wind turbine facility was properly granted for an icebreaker project in Lake Erie.

   The Icebreaker project proposes to build six turbines eight to 10 miles from Lake Erie near Cleveland.  The demonstration project will generate 20.7 MW of electricity, which is likely to be expanded if successful.

   The issue before the court was whether the Ohio Power Siting Board followed the law in issuing the permits.

   Justice Jennifer Brunner of Ohio wrote the majority opinion.  Chief Justice  Patrick F. Maureen O'Connor and  Fisher, R. Michael P.  Patrick Devine,  Donnelly and Melody Stewart joined her opinion.

   Justice Sharon Kennedy disagreed.

   In this November's election, Bruner, a Democrat, and Kennedy, a Republican, are running for chief justice of the Ohio Supreme Court.  O'Connor is retiring because of the age limit in the judiciary.

   Even after the Ohio Supreme Court's approval, it's unclear when construction will begin.  Icebreaker had trouble securing financing last year.  In January, the US Department of Energy extended the grant, giving him another year to secure the necessary funding.

   Cleveland.com and The Plain Dealer reached out to the project's lead developer, Lake Erie Energy Development Corp., inquiring about the icebreaker's future.

   The case ended up in court after two Bretonhall residents opposed the project.

   One described himself as a birdwatcher who learned to swim in Lake Erie before walking.  She was concerned about turbine blades killing birds and bats.  Other residents enjoy bird watching, boating and swimming in Lake Erie.  He argued that the state did not have enough data on whether the project caused significant damage to birds and bats.

   At one point, Murray Energy Corp., a company that filed for Chapter 11 bankruptcy protection in 2019 and sold its assets to American Consolidated Natural Resources Inc.  sold, she was paying for expert testimony and the legal fees of Bretonhall residents in the case.

   But Brunner wrote that while the board has collected the research necessary to allow construction of the icebreaker to begin, more data is needed before the company can operate the turbines.

   Rather than requiring an icebreaker to resolve those issues before issuing a certificate, the board determined that the application's grant conditions were sufficient to protect birds and bats and ensure the facility had the least adverse environmental impact.

   On the other hand, Kennedy wrote that the board held the project under some scrutiny because it was the first demonstration project of its kind.  State law does not make an exception for demonstration projects, and the board failed to collect necessary data on environmental impacts, including impacts on aquatic and bird wildlife, before issuing the certificate, she said.  If more relaxed standards are applied to demonstration projects, that decision should be made by the Legislature, she wrote.

   More than 30 conditions were followed for the icebreakers, including monitoring wildlife activity before and after construction from April 1 to November 15 each year.  Before construction, radar must be installed on the barge.  The board is also required to install collision mitigation technology before turbine operations begin.

   The Supreme Court's majority decision noted that the board cited several scientific studies of birds and bats flying over and near Lake Erie, including bird deaths at 42 land-based wind farms in the Great Lakes region.  Includes studies and deaths of bats.  .  55 land based wind farms.  The board also provided evidence that the location of the turbines would not affect the nesting habitat of birds and bats due to its remoteness from the coast.

   Brunner wrote that in appealing the board's decision, Brettenhall residents had to show the board's decision was "clearly unsupported by the record as a result of error, mistake or willful neglect of duty."

   She wrote that the residents did not provide enough evidence to support overturning the board's decision.

   Because the icebreaker is a demonstration project, Brunner wrote, it is not exempt from information requirements about threats to wildlife.  However, she said lack of accurate knowledge should not prevent the board from issuing a certificate if conditions are added requiring the company to study and report on environmental impacts.