Posted on August 22, 2022
The Ohio Supreme Court ruled Wednesday that a state permit to construct the first freshwater, offshore wind turbine facility in North America was appropriately granted for the Icebreaker project in Lake Erie.
The Icebreaker project proposes to build six turbines eight to 10 miles off the Lake Erie coast, near Cleveland. The demonstration project would generate 20.7 megawatts of electricity, with a potential to expand if successful.
At issue before the court was whether the Ohio Power Siting Board followed the law in granting the permit.
Ohio Justice Jennifer Brunner wrote the majority opinion. Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly and Melody Stewart joined her opinion.
Justice Sharon Kennedy dissented.
With the Ohio Supreme Court approval, the Lake Erie Energy Development Corp., which is called LEEDCo and is developing the project, has additional security to market the power to potential customers, the company said in a statement Wednesday, shortly after the Supreme Court decision was released.
A third of the power is under contract with the city of Cleveland and Cuyahoga County. LEEDCo can now focus on marketing the remaining two-thirds.
There isn’t yet a date for when construction will start, as LEEDCo was waiting on the court, said Will Friedman, president and CEO of the Cleveland-Cuyahoga County Port Authority.
“LEEDCo will need some time to regroup, market the power and determine next steps. We could not advance the project in any way while the Supreme Court case was pending,” he said. “Even though we prevailed today, it’s been a detrimental delay for over a year. With certainty received from the Court, we can now focus on marketing the remaining two-thirds of the electricity it will produce.”
Icebreaker is projected to have a $253 million local economic impact and create more than 500 jobs, according to the company.
The case ended up before the court after two Bratenahl residents opposed the project.
One described herself as a birdwatcher who learned to swim in Lake Erie before she could walk. She was concerned about the killing of birds and bats by the turbine blades. The other resident enjoys birding, boating and swimming in Lake Erie. They argued that the state hasn’t received enough data on whether the project poses significant harm to birds and bats.
At one point, Murray Energy Corp., a coal company that filed for Chapter 11 bankruptcy protection in 2019 and sold off its assets to American Consolidated Natural Resources Inc., was paying for expert testimony and the Bratenahl residents’ legal fees in the case.
But Brunner wrote that the board collected the necessary research to allow Icebreaker to begin construction, while also requiring more data before the company can operate the turbines.
“Rather than requiring Icebreaker to resolve those matters before issuing the certificate, the board determined that the conditions on its grant of the application were sufficient to protect birds and bats and to ensure that the facility represented the minimum adverse environmental impact,” Brunner wrote.
Kennedy, on the other hand, wrote that the board held the project to a lesser degree of scrutiny because it is a first-of-its-kind demonstration project. State law does not make exceptions for demonstration projects, and the board failed to gather the required data regarding the environmental impacts, including its impact on aquatic and avian wildlife, before issuing the certificate, she stated. If more relaxed standards should apply to demonstration projects, that decision must be made by the legislature, she wrote.
The Siting Board made over 30 conditions for Icebreaker to follow, including monitoring wildlife activity before and after construction from April 1 through Nov. 15 each year. Before construction, radar must be installed on a barge. The board also is requiring collision mitigation technology be installed before turbine operations can begin.
The Supreme Court, in the majority decision, noted the board cited many scientific studies about birds and bats flying near and off the shores of Lake Erie, including studies of bird fatalities at 42 land-based wind farms in the Great Lakes region and bat fatalities at 55 land-based wind farms. The board also cited evidence that the location of the turbines would not likely impact the habitat of nesting birds and roosting bats because of its distance from the shoreline.
Brunner wrote that when appealing the board’s decision, the Bratenahl residents had to demonstrate the board’s decision was “so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty.”
She wrote that the residents did not provide enough evidence to justify overturning the board’s decision.
Brunner wrote that Icebreaker, by being a demonstration project, is not exempt from information requirements about the danger to wildlife. However, she stated the lack of precise knowledge should not prevent the board from issuing the certificate if conditions are added that require the company to continue to study and report its environmental impacts.
“We have upheld the board’s practice of imposing conditions on wind-farm construction certificates,” the opinion stated, referring to the court’s 2012 opinion in the Buckeye Wind LLC project in Champaign County.
In the statement released by Icebreaker developer LEEDCo, Cleveland Mayor Justin Bibb says renewables such as Icebreaker Wind bring “a great opportunity to grow the wind industry locally as well as provide access to renewable energy for businesses and residents of Cleveland and the region. This project has always been a win-win for our economy and for our environment. Let’s position ourselves to be a leader, not a follower, to other states.”
Friedman, of the Cleveland-Cuyahoga County Port Authority, said by one estimate, there will be $70 billion in the offshore wind business pipeline in the U.S. by 2030.
“Other states are nipping at our heels to attract offshore wind and its economic benefits,” Friedman said. “We don’t want to squander this opportunity and let 15 years of work slip away to other states eager to capture market share.”
Wednesday’s decision is likely the last legal hurdle for Icebreaker, after years of hearings and appeals with the Siting Board. This included a requirement, since removed, that the operation of the turbine blades be curtailed from dusk to dawn between March 1 to Nov. 1 each year to mitigate the killing of migrating birds and bats. Icebreaker officials celebrated that win, saying the requirement was a poison pill that would make the demonstration project financially unviable.