Court approves construction certificates for two large solar farms in Preble County.

Court approves construction certificates for two large solar farms in Preble County.

The Supreme Court of Ohio today approved the construction of two large solar farms in Preble County, finding the Ohio Power Siting Board properly authorized the projects.

The Supreme Court rejected the objections of a group called Concerned Citizens of Preble County. The Citizens opposed the jointly developed Alamo Solar I, a project to be constructed in Gasper and Washington townships, and Angelina Solar I, a project in Israel and Dixon townships.

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 yearin 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.

Writing for the Court majority, Justice R. Patrick DeWine explained that 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.

“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 joined Justice DeWine’s opinion. Chief Justice Sharon L. Kennedy concurred in judgment only.

In a concurring opinion, Justice Jennifer Brunner stated that 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.

County Residents Raise Concerns About Solar Farms
In 2018, the developer of Alamo and Angelina sought approval from the Power Siting Board to construct large arrays of solar panels on new solar farms. Because each farm is anticipated to generate more than 50 megawatts of electricity, the board must approve their construction. The solar farms addressed several concerns of the siting board’s staff and other parties, including local government officials and the Ohio Farm Bureau.

Alamo and Angelina reached an agreement with the siting board that included several conditions that had to be met to construct the facilities. The board staff, the Preble County Board of Commissioners, the Preble County Engineer, the Preble County Soil and Water Conservation District, and the farm bureau agreed to the stipulations . The township trustees of the four townships where the projects are to be constructed also agreed to the proposal. The concerned citizens group did not.

The board approved the agreements and granted construction certificates in June 2021. The concerned citizens appealed the decision to the Supreme Court, which was required to consider the case.

Supreme Court Clarified Judicial Interpretation of Agency Regulations
The Court noted the solar farms and the siting board asked the Court to defer to the board’s interpretation of the statutes governing solar farm certification. Relying on the TWISM decision, the Court rejected the board and the solar farms’ argument that it must defer to the board’s interpretation of the statutory scheme. It also rejected the notion that the Court should defer to the board’s interpretation of the regulations it drafted. The Court noted that federal courts defer to an agency’s interpretation of its own regulations, but that type of deference is inappropriate for Ohio.

“When a court defers to an agency’s interpretation of its own regulation, it allows the agency to assume the legislative power (the rule drafter), the judicial power (the rule interpreter), and the executive power (the rule enforcer),” Justice DeWine explained, “Doing so violates the fundamental precept that the power of lawmaking and law exposition should not be concentrated in the same hands.”

Supreme Court Upheld Board Determination
Justice DeWine explained that to certify a major utility facility, the board has to find that the facility meets eight substantive statutory requirements. The opponents claimed that the board misapplied two of the requirements: The “nature of the probable environmental impact” of the farms and whether they “represent the minimum adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives.”

The concerned citizens outlined six areas where they believed the company failed to meet the environmental requirements for a certificate. Those included the amount of noise the farms would generate, the visual impact the facilities would have on the area, and whether the solar panels were set back far enough from the neighboring properties to plant “vegetative screening” that will obscure the view of the solar farms. The group also challenged whether the board adequately assessed the impact on wildlife and plants, the possibility of increased flooding, and the potential pollution that could be caused by contaminants discharged into surface waters.

The Court found the board properly interpreted its regulations when assessing the solar farms’ applications and by adding conditions to the construction. The Court also ruled that the board was not unreasonable when it assessed the probable environmental impacts and found the proposal met the minimum adverse environmental impacts.

The Court noted that the board may regulate the solar farms to ensure their developers comply with their legal commitments. The opinion noted that the solar farms will have environmental impacts, but the board must ensure the facilities represent the minimum adverse environmental impacts, considering the current state of technology.

R.C. 4906.10(A) “does not require the elimination of all adverse impacts,” the Court stated.

2022-0053 and 2022-0054 In re Application of Alamo Solar LCC, Slip Opinion No. 2023-Ohio-3778.

View oral argument video of this case.

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