NIMBY victories present uncertain future for solar development in Ohio

Energy Harbor’s announced closing of the Sammis plant means solar projects in Ohio’s regulatory pipeline already exceed the coal power that will remain after 2028.(Courtesy: Mariana Proença/Unsplash)

By Kathiann M. Kowalski, Energy News Network

Ohio clean energy advocates say a string of solar project denials by state regulators has left renewable energy developers uncertain about the role of public input in permit decisions. 

Critics claim the Ohio Power Siting Board has been inconsistent and arbitrary in recent months with how it weighs local opposition as it balances the pros and cons of energy projects.

In some cases, like January’s denial of the 68 MW Cepheus Energy solar project in Defiance County, the board cited local opposition as a reason to deny the project.

In other cases, like February’s approval of the 120 MW Border Basin project in Hancock County, public criticism by a local township, a county health commissioner, and area residents was insufficient to block the project. 

The result: developers don’t know whether projects will be able to move ahead or be doomed by opposition, even if companies modify plans or take other steps to address specific issues.

“There’s a lack of certainty on where the goalpost really is,” said Dan Sawmiller, Ohio energy policy director for the Natural Resources Defense Council. 

At stake are potentially millions of dollars for pre-construction work that solar companies could spend elsewhere if they knew local opposition would doom projects. Also at risk are millions of dollars in economic benefits from projects during the construction and operational stages, plus pollution reductions to address climate change and other issues. 

GO DEEPER: Episode 20 of the Factor This! podcast features SOLV Energy CEO George Herschman, whose company is developing the largest solar project in the US, to share strategies that clean energy developers can use to overcome NIMBY opposition. Subscribe wherever you get your podcasts!

Weighing local opposition

Under state law, the Ohio Power Siting Board is charged with vetting and permitting all new electrical generation and transmission projects in the state. The law requires the board to consider multiple factors, including the project’s likely environmental impact and whether it “will serve the public interest, convenience, and necessity.”

“The board examines the public interest, convenience and necessity through a broad lens, and public and local input are a key consideration under this criterion,” board spokesperson Matt Butler said.

A formal definition of the “broad lens” standard doesn’t exist. Butler said the board needs to balance the public benefits of a project against its impact on local communities near where it would be built. 

The board often puts conditions on solar permits to address project concerns, but it had not outright denied a solar project until last October, when it rejected the proposed 300 MW Birch Solar project in Allen and Auglaize counties. The project otherwise satisfied the statute’s requirements, but the board opinion noted a large amount of local government opposition and public comments against it, including one from Ohio Senate President Matt Huffman, R-Lima.

In December, the board denied the 175 MW Kingwood Solar project in Greene County, noting opposition from the county and local townships while dismissing some supportive comments as “skewed” by union members’ participation.

The Cepheus Energy project was denied in January, but other large solar projects have been approved by the board since then, even when facing local opposition.

“We are seeing some cases still granted, while there are some notable ones that have been denied or discouraged from continuing in the process,” said Karin Nordstrom, an attorney with the Ohio Environmental Council. 

Ohio solar permitting outcomes

Rulemaking underway

The Ohio Power Siting Board is considering revisions to its rules for solar farms and other facilities, pursuant to state law calling for a review every five years. Initial workshops took place in October 2021, and the board issued proposed draft revisions in June 2022 and January 2023.

Renewable industry groups’ comments have urged the board to add language specifying how its staff will evaluate projects’ “public interest, convenience, and necessity.” The groups want a balancing of all factors so that the positive benefits to the community and state are weighed against opponents’ concerns. 

In particular, comments on projects should be evaluated by “the qualitative nature of any comments received — not just the quantity,” the groups’ comments said. In other words, the board should judge if objections are based on factual evidence, versus just reciting general topics or counting how many were filed by individuals or public officials. The staff should also consider whether applicants have committed to take steps to mitigate those concerns, the groups said.

Similarly, comments by the Natural Resources Defense Council said “alleged opposition should not be given controlling weight,” especially if assertions made in comments aren’t subject to rigorous review or cross-examination.

“The board is supposed to be considering merits,” Sawmiller said, not the numbers of opponents. “The board is supposed to evaluate people’s concerns and whether the company has mitigated those concerns.” And that decision is supposed to be based on the regulators’ expertise.

In his view, staff reports urging denials “identify local opposition, and they offer in their recommendations nothing the company can do to accommodate the opposition.” When the board echoes that, Sawmiller said, “They’re simply saying, ‘This is how the community feels. Tally it up. They’re opposed.’” 

“Recent public interest decisions have yielded arbitrary outcomes,” the Ohio Environmental Council wrote in its comments on the proposed rules. There are also questions about how the handling of solar cases compares to other types of energy projects. In a 2016 gas pipeline case, 1,390 opposition comments led to a slight change in the route. Yet in a pending solar case, the board’s staff report deemed 40 opposition comments “too much for the project to go forward at all,” the environmental group’s comments noted.

The board has not yet responded to those comments or others urging it to expressly consider climate change and other environmental factors. The rule revisions could come out as soon as this summer.

Meanwhile, board cases remain pending. The Birch Solar and Cepheus cases remain open at the board on rehearing requests claiming the board erred in its denials. And in April the developer of the Kingwood project appealed the case to the Ohio Supreme Court, asserting that how the board applied public interest was unlawful and unreasonable. 

GO DEEPER: Attorneys Matthew Karmel and Yana Spitzer joined Episode 38 of the Factor This! podcast to discuss the legal risks facing the solar industry, and they pointed out the potholes to watch out for in the future. Subscribe wherever you get your podcasts.

Solar developers were reluctant to discuss how uncertainty around the siting board’s recent permitting decisions is affecting specific project decisions. 

In December, EDF Renewables withdrew its application for the 400 MW Chipmunk Solar project in Pickaway County amid opposition from the county, townships and area residents, although the company has not given a reason for canceling the project.

A 2021 law will add more complications for renewable developers. Senate Bill 52 will let counties ban new solar or wind projects from all or part of their territories. Those provisions don’t yet apply to any pending projects at the board, Butler said.

SB 52 also lets county commissioners and township trustees add two representatives to the board’s seven voting members for local cases. That provision has kicked in for some cases, Butler said.

The 2021 law doesn’t apply to fossil fuel or nuclear power plants.

This article first appeared on Energy News Network and is republished here under a Creative Commons license.

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