COLUMBUS — Last week the Ohio Supreme Court approved two large solar farms which have been much-debated – and fought – in Preble County.
On Wednesday, Oct. 18, the court approved construction of the Alamo Solar I project set to be located in Gasper and part of Washington Township, and the project called Angelina Solar I, set to be located in Israel and Dixon Townships. The Supreme Court ruled the Ohio Power Siting Board had properly authorized the projects according to the lengthy court decision.
The Supreme Court rejected the objections of the Concerned Citizens of Preble County group, according to the decision. The Concerned Citizens of Preble County opposed the jointly developed Alamo and Angelina solar projects.
According to Ohio Court News’ Dan Trevas, in doing so, the court also clarified an important point of administrative law, holding that the judiciary is never required to defer to an agency’s interpretation of its own rules. “Last year in TWISM Ents. LLC v. State Bd. of Registration for Professional Engineers & Surveyors, the Supreme Court held that the judiciary is never required to defer to an agency’s interpretation of a statute enacted by the General Assembly. Today, the Court found that the same principle applies to the interpretation of a rule adopted by an administrative agency,” Trevas wrote last Wednesday.
Writing for the Court majority, Justice R. Patrick DeWine explained the opponents to the solar farms claimed the Power Siting Board misinterpreted and misapplied its own rules by not requiring the developers of Alamo and Angelina to submit all the information required by the rules.
The Court found the board abided by its rules, according to the decision.
“The legislature has instructed that we may reverse a board order only if we find it to be unlawful or unreasonable. Because neither has been established, we affirm the order of the Power Siting Board,” Justice DeWine wrote.
Justices Patrick F. Fischer, Michael P. Donnelly, and Joseph T. Deters agreed with Justice DeWine’s opinion. Chief Justice Sharon L. Kennedy concurred “in judgment only.”
In a concurring opinion, Justice Jennifer Brunner said the majority “improperly and unnecessarily discussed” the TWISM decision. In that decision, the Court held it was the task of the judiciary, not an administrative agency, to determine what a law means, and the courts do not have to defer to an agency’s interpretation of a state law. In this case, the opponents dispute the type and sufficiency of the evidence used by the board in making its decision. Justice Brunner maintained there is no need to extend or apply the TWISM decision to this case, because the interpretation of agency rules is not at issue, nor does the evidence involve an interpretation of agency rules. Justice Melody Stewart joined Justice Brunner’s opinion.
Court documents note: “The General Assembly has authorized commercial solar farms in Ohio but has made their construction conditional on approval by the Ohio Power Siting Board. Before a large solar farm may be built, the board must determine that the solar farm complies with certain statutory criteria. The board ultimately approved the two solar farms at issue. It did so after its staff agreed to stipulations with the two solar farms, various local governments, and the Ohio Farm Bureau. The stipulations impose a number of conditions on the construction and operation of the facilities.
“In this appeal, a citizens group and some nearby residents challenge the board’s orders approving the facilities. The legislature has instructed that we may reverse a board order only if we find it to be unlawful or unreasonable. Because neither has been established, we affirm the orders of the Power Siting Board,” the decision noted.
“Alamo and Angelina filed applications in late 2018 seeking the (Power Siting) board’s approval to construct their respective facilities. Each solar farm will contain large arrays of ground-mounted solar panels, as well as support facilities such as access roads, meteorological stations, buried electricity-collection lines, inverter pads, and a substation. Because the solar farms will have the capacity to generate more than 50 megawatts of electricity, they must obtain board approval prior to construction,” court records explained.
It continued, “In 2019, joint stipulations and recommendations were filed in each case. The stipulations were intended to resolve all matters relevant to certification and construction of the facilities. In each case, the stipulations were agreed to by the applicant, board staff, the Preble County Commissioners, the Preble County Engineer, the Preble County Planning Commission, the Preble County Soil and Water Conservation District, and the Ohio Farm Bureau. The trustees of the townships in which the facilities are to be located (Gasper and Washington for Alamo, and Israel and Dixon for Angelina) also joined the respective stipulations. The citizens did not join either stipulation.
“After the board conducted evidentiary hearings on both stipulations, the parties filed amended and restated stipulations and recommendations with the board. The board then held supplemental hearings in each case to consider testimony supporting and opposing the amended stipulations.
“In June 2021, the board issued an opinion and order in each case approving the amended stipulations, subject to certain conditions, and granting. All parties signed the amended joint stipulations except for Israel Township.
After unsuccessfully seeking rehearing, the citizens filed an appeal in each case. Alamo and Angelina intervened in their respective cases and urged the court to affirm the Power Siting Board’s orders.
The complete decision can be found online at https://tinyurl.com/3jyyrhee.
Reach Eddie Mowen Jr. at 937-683-4061 and follow on X @emowenjr.
