Supreme Court decision: Solar energy farm must present more visual impact information to receive approval

The Ohio Power Siting Board must more thoroughly address the visual impacts of an “agrivoltaic” solar farm proposed by Oak Run Solar Project before approving the application for construction, the Supreme Court of Ohio ruled today.

Oak Run applied for a construction certificate to construct an 800 megawatt solar-power generating facility situated on 6,050 acres of land in Madison County.  The Madison County Board of Commissioners and trustees from Somerford, Deercreek, and Monroe townships contested the plan. 

Writing for the Court majority, Justice Patrick F. Fischer noted that the local governments identified four areas where Oak Run’s application for project approval was missing required information or failed to fully identify how it might address potential safety issues. Except for concerns about the visual impacts of large poles carrying electric transmission lines, the local governments failed to prove they would be harmed by other shortcomings of the application, he wrote.

Justices R. Patrick DeWine and Joseph T. Deters joined Justice Fischer’s opinion.

In an opinion concurring  in part and dissenting in part, Justice Daniel R. Hawkins wrote that the board approved the Oak Run project without the water-quality and wildlife-survey assessments required by law. The board also did not adequately address safety concerns related to the site’s battery storage systems, which pose a risk of toxic emissions if they catch fire.

Justice Hawkins stated that without the required baseline studies of the current water quality and wildlife in the area, the local governments will either not know or must determine on their own the potential impact of the solar farm’s construction.

“Oak Run is in the best position to understand the environmental harm that its proposed project poses to local communities, which is why Ohio law places the burden on Oak Run to submit an application that satisfies the requirements of the Administrative Code,” he wrote. “Expecting the local governments, at taxpayer expense, to obtain the information that Oak Run was supposed to provide with its application is the wrong precedent to set.”

Chief Justice Sharon L. Kennedy and Justice Megan E. Shanahan joined Justice Hawkins’ opinion.

Chief Justice Kennedy also wrote a separate opinion concurring in part and dissenting in part. She wrote that the local governments cannot measure the potential environmental impacts or adequately estimate risks without a thorough understanding of the project area before construction begins. She added that the local governments are harmed by Oak Run’s incomplete emergency services and response plan, which fails to address key issues, such as identifying a water source capable of preventing the spread of lithium-ion battery fires.

“These are not minute details that can be filled in later, nor are the harms these omissions could cause easily rectified after the fact, in no small part because without baseline data, the actual risks and ultimate toll of Oak Run’s proposed project are hard to know,” she wrote.

In a separate opinion, Justice Jennifer Brunner joined Justice Fischer’s opinion, except she would have found Oak Run provided adequate information on the visual impacts. She wrote the board established that even the highest structures on the property would be nearly unnoticeable from the project borders, and the local governments have not shown that the board would have reached a different conclusion about Oak Run’s application had more detailed illustrations of the site been presented.