Ohio Supreme Court Upholds Permit for First U.S. Freshwater Offshore Wind Farm

The Supreme Court of Ohio issued a decision upholding the Ohio Power Siting Board’s issuance of a certification of environmental compatibility and public necessity to build the Icebreaker project in Lake Erie. The six-turbine, 20.7 megawatt offshore project would be constructed by the Lake Erie Energy Development Corporation, around 10 miles off the coast of Lake Erie near Cleveland.

The development is being viewed as a scaled down experiment project to assess the feasibility of offshore wind farms in Lake Erie. There have been challenges to the project and several interested parties have opposed the board’s approval, principally claiming that the state has received inadequate data on the negative impact of the facility on birds and bats. In their lawsuit challenging the board’s approval, residents living close to the Lake Erie shore argued that the project would infringe the public trust doctrine, which entails the state to preserve the use of Lake Erie for the benefit of the people in the state.

In May 2020, the board issued a certificate allowing Icebreaker Wind Inc. to construct  the offshore wind demonstration project subject to 33 conditions, including curtailing turbine operations during nighttime hours for eight months of the year, in order to mitigate the impacts on birds and bats, rendering the project economically unviable. Subsequently, in October 2020, the board issued an order removing the restrictions following requests for reconsideration by project developers and a bipartisan group of 32 Ohio legislators. The project developers said that the condition renders the project financially unviable and also reneges on an agreement reached with the board staff.

The court examined the board’s assertion that it comprehensively studied the possible environmental effect of the project and that its findings met the obligations of state law. The court pointed out that the board mentioned a number of scientific studies concerning birds and bats flying near and off the shores of Lake Erie. In addition, the board considered the testimony that the location of the turbines would not affect the territory of nesting birds and bats because of its interspace from the coastline. The board examined several studies on the impact of bird deaths on wind farms and concluded the Icebreaker project would produce a low threat to wildlife.

The court acknowledged the fact that the nature of the experimental project restricts the extent of available knowledge regarding the threat to wildlife, but also recognized that the shortage of detailed information should not inhibit the board from issuing the certification if requirements are included for the company to continue to examine and inform its environmental effect findings.