Tag Archives: wind development

The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow

The midterm elections are over, and Thanksgiving is upon us.  A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up.  The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.

Here’s our gathering of ag law news you may want to know:

State of Ohio sued over wind turbine setbacks.  Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio.  In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines.  Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures.  The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill.  On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down.  The plaintiff’s complaint is available here.  Stay tuned to the Harvest for updates.

Department of Labor proposes rule requiring H-2A advertisements be posted online.  The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits.  H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens.  Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday.  This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151.  The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print.  The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities.  Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary.  U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal.  The public may submit comments to the DOL about the proposed rule.  Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.

LLC agreement to adjust member financial contributions must be in writing.  The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements.  Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions.  The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas.  The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally.  In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing.  Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.

Ohio legislation on the move:

The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it.  Already a number of bills that we have been monitoring have seen activity in their respective committees.

  • Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill. State senators heard testimony on House Bill 480 last Tuesday, November 13th.  The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code.  The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole.  The bill would also establish certain advertising requirements.  The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry.  The bill passed the Ohio House of Representatives 93-0 in June.  For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.
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With Ohio wind projects under consideration, Indiana bat stops wind turbine development in West Virginia

The development of wind farms is a controversial land use issue in Ohio, as in other states.  Arguments abound on both sides and revolve around private property rights, community land use planning, green energy, preservation of open landscapes and wildlife impacts.  It is this last factor–impacts on wildlife–that convinced a federal court to halt a wind development project in the Appalachian mountains of West Virginia, much to the dismay of developers of the $300 million project.

The Indiana bat, an endangered species with the power to stop a wind development project

The Beech Ridge wind energy project involves construction of 122 wind turbines along  the ridgeline of the Appalachian mountains in Greenbrier County.   About forty of the turbines are currently in the construction phase, but the federal court has issued an injunction stopping construction of any additional turbines and limiting existing turbine use to the bat’s winter hibernation period.  The reason:  project developers failed to take seriously the issue of harm to the Indiana bat.   The Indiana Bat is on the list of “endangered” species, and interference with the animal or its habitat is prohibited by the federal Endangered Species Act (ESA).   The wind project developers did hire an environmental consultant to examine the situation, but the consultant repeatedly disregarded information and advice from the U.S. Fish and Wildlife Service (FWS) that would have more accurately identified the Indiana bat population.   The court critized the consultant’s efforts, stating that “[s]earching for bats near proposed wind turbine locations for one year instead of three, looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment.”  Later surveys revealed the existence of two caves within ten miles of the project that are home to hundreds of bats, including Indiana bats, and evidence suggested that nearly 7,000 bats would die each year because of the project.

Despite the existence of the bats near the project, however, the court pointed out that Beech Ridge’s developers could have requested an “incidental take permit” (ITP) pursuant to the ESA.  The ESA’s incidental take permit mechanism could have allowed the project to proceed, but with preparation of an FWS approved Habitat Conservation Plan demonstrating that measures would be taken to minimize or mitigate adverse effects on the Indiana bat.  “Indeed, the tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species,” said the court.

The Animal Welfare Institute and Mountain Communities for Responsible Energy filed the lawsuit, and produced expert testimony indicating that Indiana bats exist near the project site and that there was a very high likelihood that the turbines would kill and injure the bats.   The court drew upon Benjamin Franklin in its response to the expert testimony,  stating “. . . the Court concludes, by a preponderance of the evidence, that, like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project . . .”

The difficulty of rendering such a decision is apparent in the court’s opinion.   Judge Titus expresses disappointment and frustration with the project developer’s approach to the bat issue, and “reluctantly” orders the injunction.  But unlike many in the wind development arena, the court does not hesitate to give credibility to the interference of wind turbines with the bat population.  He recognizes that the case illustrates a clash between two federal policies:  protection of species and encouragement of renewable energy development, but insists that the two policies are not necessarily in conflict because of  the ESA’s incidental take option and the opportunity for harmonious development.  Seeking an incidental take permit is the only avenue available to help project developers resolve their “self-imposed plight,” states the court.  “The development of wind energy can and should be encouraged,” says Judge Titus, “but wind turbines must be good neighbors.” 

As the Indiana bat did years ago, wind development has made its way to Ohio.  The Ohio Power Siting Board is currently considering approval of several wind projects including the Buckeye Wind Project, a 70 turbine project in Champaign County that would be Ohio’s largest wind development.   Testimony by an environmental consultant at last month’s hearings before the board focused on potential impacts of the project on the Indiana bat.  According to the consultant, studies revealed no evidence of the Indiana bat in the project area.   Studies in nearby Logan County in 2008 revealed the existence of Indiana bats in an area that has since been removed from the project, and another wind developer reported finding an Indiana bat in Champaign County earlier this year.  The Ohio Power Siting Board may take months to decide whether to approve the Buckeye Wind Project and to indicate its conclusions about impacts on Indiana bats.

In accordance with state policy promoting renewable resource development,  the Ohio Department of Natural Resources encourages wind developers to enter into a voluntary agreement to cooperatively address wildlife issues.  In the agreement, ODNR promises not to pursue liability against the developer for any incidental takings of endangered or threatened species.  However, ODNR’s agreement cannot prevent private groups from challenging the turbines in federal court using the approach of the Beech Ridge Energy case.  Should the Ohio Power Siting Board approve a project like the Buckeye Wind Project, Ohio may see its own federal court case on Indiana bats and wind development.

Read the court’s December 8, 2009 decision in the Beech Ridge Energy case here or go to the Maryland District Court’s webpage for the opinion and order at http://www.mdd.uscourts.gov/publications/opinions/Opinions.asp.

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