The Lake Erie Energy Development Corporation (LEEDCo) has applied for a rehearing and reconsideration of Ohio Power Sitting Board’s ”fatal May 21 ruling” on the Icebreaker Wind project, arguing that the ”board stepped outside its statutory authority and violated Ohio law.”
Back in May, the Ohio Power Siting Board (OPSB) approved the construction of the Icebreaker Wind project with 33 conditions, one of which was that the project’s six wind turbines must be shut down during nighttime hours from March until November.
According to the appeal filed by LEEDCo, OPSB ignored the evidence and acted contrary to state law when it disregarded the findings of its own technical staff and added this condition to its approval of the Icebreaker Wind demonstration project in Lake Erie.
LEEDCo has now asked OPSB to reconsider what the company describes as the ”project-killing decision”, which would allow for the plans to build the 20.7 MW demonstration project eight miles off Cleveland to move forward.
Icebreaker was expected to inject USD 253 million in the local economy over its lifetime and create more than 500 jobs, the developer said.
The project was reviewed by more than a dozen state and federal agencies including U.S. Fish and Wildlife, Ohio EPA, and others. It has the support of many environmental groups, including the Sierra Club, the Environmental Defense Fund, and the Ohio Environmental Council.
LEEDCo said that it was stunned recently by an OPSB decision that masqueraded as approval though it imposed a “shutdown condition” which mandates the wind farm cease operations every night from March until November, which renders the project financially untenable.
After many months of discussions, an agreement was reached last year without the condition after the state’s own experts testified under oath the shutdown mandate wasn’t needed, according to LEEDCo.
Dave Karpinski, president of LEEDCo, said the OPSB decision, which reneged on the earlier agreement, was unjust, unreasonable, and unlawful.
“The efforts to justify this decision simply don’t wash,” Karpinski said.
“This dooming condition was added to the permit at the 11th hour after we spent years hammering out every detail of our operations with the OPSB Staff and the wildlife experts at ODNR. Why? We are respectfully asking every member of the board to carefully review our appeal and review this condition to make sure that they fully understand the facts that played out before they went along with the May 21st decision.”
Karpinski went on to say that there is a possibility that the evidence ”wasn’t fully conveyed or some technical details were lost in translation.”
The condition was added either by mistake, or it was added specifically to kill the project, Karpinski said.
“If not corrected, the repercussions of this decision go far beyond this project. Should the decision stand, the implication is that evidence can be ignored, technical staff and expert testimony can be disregarded – setting a dangerous precedent for any project going before this board that controls the energy fate of millions of Ohioans,” Karpinski said.
Terrence O’Donnell, an attorney for Icebreaker Wind, said the appeal is on strong legal footing.
“As a legal matter, we think the shutdown mandate contradicts all of the evidence on the record that led the ODNR and Board technical staffs to approve the project. And the Board is bound to decide based on the evidence in the record. They can’t just arbitrarily add fatal requirements at the eleventh hour,” O’Donnell said.
O’Donnell also thinks the shutdown mandate exceeds the Board’s legal authority.
“We do not believe the Board can say ‘as a condition of operating, you cannot operate.’ Nothing in Ohio law grants the Board that kind of unchecked power. This shutdown mandate is without legal precedent, and we are hopeful the Board will reconsider,” O’Donnell said.
Karpinski is also appealing to Ohio’s Governor Mike DeWine to weigh in on the issue.