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A legal challenge by two lakeview condo dwellers seeking to block Lake Erie’s first offshore wind farm faces a high legal bar before the Ohio Supreme Court — with equally high stakes for clean energy in the region.
The Icebreaker Windpower project’s six turbines would sit roughly 8 to 10 miles northwest of Cleveland and produce roughly 20.7 megawatts of electricity per year. The Lake Erie Energy Development Corporation, or LEEDCo, has worked on the project for more than a decade.
The Ohio Power Siting Board approved the project in October, putting it on track to become not just the first offshore wind project in Ohio but also the first freshwater offshore wind project in North America.
The developer has achieved several regulatory wins, including the removal of a “poison pill” from an earlier version of the siting board’s approval, which would have mandated nightly shutdowns of the turbines for eight months of the year. There was no evidence that the shutdowns would have been necessary to protect wildlife.
LEEDCo and others asked the board to reconsider that proviso. A bipartisan group of 32 lawmakers also wrote to then-board chair Sam Randazzo, detailing why the nightly shutdown condition was unlawful. The board issued its revised order on Oct. 8, 2020. Randazzo, a longtime foe of renewable energy, had initially favored the shutdown requirement. He resigned the next month in the wake of the House Bill 6 conspiracy scandal.
In the end, the Ohio Power Siting Board “thoroughly considered the abundant evidence in the record,” including testimony from eight days of evidentiary hearings, as well as findings in a revised stipulation, lawyers for the board wrote in their brief. That stipulation “represents a fully-negotiated agreement containing numerous protective conditions, benefits the public interest, and comports with all applicable regulatory principles and practices,” they added.
The project’s primary resistance now comes from two intervenors in Bratenahl, Ohio, a suburb east of Cleveland with median annual earnings above $80,000, according to U.S. census data. W. Susan Dempsey watches birds and sunsets from her balcony, and Robert Maloney enjoys birding and regularly takes his boat out to fish on Lake Erie, their lawyers wrote in 2018.
Their case challenging the siting board’s decision, now before the state’s top court, faces a much narrower path than it had before the board. The Ohio Supreme Court won’t overturn the Ohio Power Siting Board’s ruling unless it was unlawful or unreasonable. Generally speaking, the court is supposed to affirm the Ohio Power Siting Board as long as it correctly applied the law to the facts before it. And the board’s factual findings depend in large part on its technical expertise.
So, the court won’t disturb those findings unless they are manifestly against the weight of the evidence or so clearly unsupported as to show misapprehension, mistake or a willful disregard of duty, the state’s brief noted.
“The court gives deference to the technical opinions of the agencies,” said Dave Karpinski, who heads up LEEDCo. In his view, “there are really no new arguments in their appeal,” which haven’t already been considered and rejected by the board.
“Because Icebreaker Wind is the first ever offshore wind project proposed in Ohio, it is one of the most thoroughly reviewed projects ever to be approved in the state, having been comprehensively studied and analyzed at length,” said Miranda Leppla, vice president of energy policy for the Ohio Environmental Council.
Attorneys John Stock and Mark Tucker represent Dempsey and Maloney. Neither Stock nor Tucker responded to a request for comment for this article.
The lawyers’ 2017 engagement letter with Maloney indicates that the legal fees were being paid by Murray Energy Corporation. The company began bankruptcy proceedings in late 2019, but nonetheless made payments to the lawyers’ firm that year and while the bankruptcy was pending, Dave Anderson at the Energy and Policy Institute has reported.
“Murray Energy has not paid the Bratenahl Residents’ fees for quite some time, and yet the Bratenahl Residents continue their vehement opposition to this misguided Project,” said a footnote in Stock and Tucker’s June 17 reply brief.
Left unsaid was whether Dempsey and Maloney have since paid any legal fees out of pocket, or whether fees have been paid by American Consolidated Natural Resources, Inc. That company is Murray Energy’s successor after its emergence from bankruptcy in September 2020. Media personnel for American Consolidated Natural Resources, Inc. likewise have not responded to questions about legal fees in the case.
The stakes go far beyond the Icebreaker Windpower project, because the work could help prove the viability of offshore wind in the Great Lakes.
“The fact that it’s been done off the East Coast is good, but it doesn’t really pave the way for the Great Lakes, because there are so many differences,” Karpinski said.
Among other things, fresh water freezes before ocean water does. Because of that, the turbines will need to deal with surface ice. The maximum winter ice cover forecast for Lake Erie is 67% — the highest for the Great Lakes, according to the National Oceanic and Atmospheric Administration. So, turbines’ ability to deal with ice there should bode well for other Great Lakes projects.
The Great Lakes’ wind energy potential could be huge, according to a March 2021 report from Environment America and Frontier Group. Calculations show that the lakes could supply up to roughly one-fifth of combined electricity needs projected by 2050 for Ohio, Michigan, Wisconsin, Minnesota, Illinois, Indiana and Pennsylvania. Among those states, Michigan, Wisconsin and Ohio have the greatest potential — up to 72%, 27% and 19% of their projected 2050 needs.
“A demonstration project in the Great Lakes would be an important step toward reaching our offshore wind potential,” said Bronte Payne, Go Solar campaign director for Environment America. For too long, offshore wind has been “an untapped tool poised to deliver large amounts of renewable electricity,” she said.
“Right now, the Great Lakes region is experiencing the effects of climate change with both warmer weather and increased flooding,” Bronte continued. “This makes it even more important that we are using all of the tools in our toolbox to repower our communities with 100% renewable energy. Offshore wind is a part of that.”
Leppla said the project has taken on additional significance as the state legislature has made it more difficult to site renewable projects. “Ohio should be leaning into the clean energy future and all of the benefits that come with it — from environmental benefits to economic development and job creation.”
Briefing in the Ohio Supreme Court case wrapped up last month. Oral argument will likely take place within the next two to four months. A decision in the case will probably follow by sometime in 2022. However, there’s no statutory timeline for the court to act.
“That’s really just put things in a holding pattern,” Karpinski said.
If the court upholds the power siting board, LEEDCo will still need time to mobilize and line up contractors, Karpinski said. “We’ve got to restart it. You’re not just picking up where you left off.”
As and when that does happen, LEEDCo also will need to comply with various permit conditions incorporated into the Ohio Power Siting Board’s October 2020 order, including pre-construction testing to show that any avian collisions will be reliably detected. Pre-construction requirements are not unusual.
“All permits have conditions,” Karpinski said. “There’s so much compliance — not only during construction, but for the life of the project, that we have to satisfy.”
For the time being, LEEDCo will wait for the Ohio Supreme Court’s ruling. “Right now we want to make sure we have permanent certainty before we do anything,” Karpinski said.