In re Application of Oak Run Solar Project, L.L.C.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In

re Application of Oak Run Solar Project, L.L.C., Slip Opinion No. 2026-Ohio-1849.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2026-OHIO-1849

IN RE APPLICATION OF OAK RUN SOLAR PROJECT, L.L.C., FOR A CERTIFICATE

OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED TO CONSTRUCT A

SOLAR-POWERED ELECTRIC-GENERATION FACILITY IN MADISON COUNTY,

OHIO; MADISON COUNTY BOARD OF COMMISSIONERS ET AL., APPELLANTS;

POWER SITING BOARD, APPELLEE; OAK RUN SOLAR PROJECT, L.L.C.,

INTERVENING APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as In re Application of Oak Run Solar Project, L.L.C., Slip

Opinion No. 2026-Ohio-1849.]

Public utilities—Certificate of construction for solar farm—R.C. 4906.10(A)—

Adm.Code 4906-4-08(D)(4)(e)—Ohio Power Siting Board did not obtain

from applicant seeking certificate to construct solar farm photographic

simulations or artist’s pictorial sketches of substations for the proposed

project, which the board needed to adequately assess the proposed project

from public vantage points under Adm.Code 4906-4-08(D)(4)(e) and to

make the substantive statutory determinations regarding the visual impacts

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of the proposed project under R.C. 4906.10(A)—Orders affirmed in part

and reversed in part and matter remanded.

(No. 2024-1477—Submitted October 28, 2025—Decided May 26, 2026.)

APPEAL from the Power Siting Board, Nos. 22-549-EL-BGN and

22-550-EL-BTX.

__________________

FISCHER, J., authored the opinion announcing the judgment of the court,

which DEWINE and DETERS, JJ., joined. KENNEDY, C.J., concurred in part and

dissented in part, with an opinion. BRUNNER, J., concurred in part and dissented in

part, with an opinion. HAWKINS, J., concurred in part and dissented in part, with an

opinion joined by KENNEDY, C.J., and SHANAHAN, J.

FISCHER, J.

{¶ 1} Appellee, the Ohio Power Siting Board, authorized intervening

appellee, Oak Run Solar Project, L.L.C., to construct a solar farm in Madison

County. The project’s opponents and appellants here, the Board of Trustees for

Somerford Township, the Board of Trustees for Deercreek Township, the Board

for Trustees for Monroe Township, and the Madison County Board of

Commissioners (collectively, “the local governments”)—have appealed the board’s

opinion and order granting that authorization, as well as the board’s order denying

their application for rehearing.

{¶ 2} The crux of their argument is that the board failed to obtain the

information necessary to engage in reasoned decision-making about whether to

approve various aspects of the project. The local governments are right in one

respect: the board did not obtain adequate visual simulations or sketches of the

proposed facility. The local governments’ remaining arguments fail either on the

merits or because they do not show prejudice from the board’s orders.

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{¶ 3} We accordingly affirm in part and reverse in part the board’s orders,

and we remand this matter to the board with instructions to more thoroughly address

the project’s visual impacts.

I. BACKGROUND

A. Legal background

{¶ 4} The General Assembly has vested the board with the authority to

approve the construction of a “major utility facility.” R.C. 4906.10(A); see also

R.C. 4906.01(B)(1) (defining “major utility facility”); R.C. 4906.04 (“No person

shall commence to construct a major utility facility in this state without first having

obtained a certificate for the facility.”). There is no dispute that, as the board found,

Oak Run’s proposed solar farm in Madison County qualifies as a major utility

facility.

{¶ 5} Before the board can approve the construction of a major utility

facility, however, “it must make eight substantive determinations,” In re

Application of Harvey Solar I, L.L.C., 2025-Ohio-1503, ¶ 10, as set forth in R.C.

4906.10(A). At issue here is whether the board’s findings support its order with

regard to the following four substantive determinations under R.C. 4906.10(A):

(2) The nature of the probable environmental impact;

(3) That the facility represents the minimum adverse

environmental impact, considering the state of available technology

and the nature and economics of the various alternatives, and other

pertinent considerations;

...

(5) That the facility will comply with [R.C. Ch. 3704, 3734,

and 6111] and all rules and standards adopted under those

chapters . . . ; [and]

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(6) That the facility will serve the public interest,

convenience, and necessity; . . . .

{¶ 6} The board has adopted “rules as are necessary and convenient to

implement” R.C. Ch. 4906. R.C. 4906.03(C). The board’s rules that are at issue in

this case are discussed below.1

B. Factual background

{¶ 7} In September 2022, Oak Run applied to the board for approval to

develop, construct, and operate a solar farm in Madison County. The board granted

the local governments’ motions to intervene in the case, as well as the motions to

intervene of several other parties, including Dr. John Boeckl and the Ohio

Environmental Council (“OEC”), both of whom filed amicus briefs in this appeal.

{¶ 8} The board’s staff submitted a report summarizing its investigation of

the project, with findings and recommendations for the board’s consideration. Oak

Run and some of the intervenors (including Dr. Boeckl and OEC) then filed a joint

stipulation, recommending that the board approve the project, subject to 46

conditions.

{¶ 9} The board held a hearing on the stipulation; it heard evidence

supporting and opposing the project, after which it issued a decision amending the

stipulation and approving the project, subject to the conditions in the amended

stipulation. 2024 WL 1465954, *82 (Mar. 21, 2024). It determined that the project,

as approved, satisfied the eight requirements of R.C. 4906.10(A). Id. at *81.

{¶ 10} The facility will sit on about 4,400 acres of privately owned land

within an approximate 6,050-acre project area. Oak Run procured the land by

1. Effective May 30, 2024, after it issued its opinion and order in this case, the board amended and

renumbered some of its rules. There is no dispute that the pre-amendment versions of the rules

govern here, and each rule citation in this opinion is to the pre-amendment version. The first citation

to each rule identifies the effective date of the applied version. And each subsequent citation to the

same rule is to that prior version.

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executing agreements with the landowners. The facility will include an 800

megawatt (“MW”) solar-powered electric-generating facility, a 300 MW

alternating-current battery-energy storage system (“BESS”) comprised of two 150

MW facilities, and two 3.45-mile-long transmission lines.

{¶ 11} Rows of solar panels will be secured to the ground and “grouped in

large clusters that will be fenced with gated entrances.” Oak Run will site the panels

as part of an “agrivoltaics program,” whereby agricultural products will grow and

livestock will graze between the rows of panels. The purpose of an agrivoltaics

program is to harness the dual-use capabilities of land—that is, to preserve the

agricultural productivity of the land while simultaneously using the land as a solar

farm to generate renewable energy. Other features of the facility include a seven-

foot-tall perimeter fence, access roads, two operations-and-maintenance buildings,

underground electric-collection lines, weather stations, inverters, transformers, and

collector substations.

{¶ 12} The board denied the local governments’ rehearing application, 2024

WL 4039785, *1, 10 (Aug. 22, 2024), and the local governments filed this appeal.

We granted Oak Run’s application to intervene as an appellee. 2024-Ohio-5878.

II. ANALYSIS

{¶ 13} This court may reverse, vacate, or modify a final board order “if,

upon consideration of the record,” we conclude that the “order was unlawful or

unreasonable.” R.C. 4903.13; see also R.C. 4906.12. The “unlawful” part of this

standard of review refers to our review of legal questions, “such as the proper

interpretation of a statute or whether the board followed its own administrative

rules.” Harvey Solar, 2025-Ohio-1503, at ¶ 12. Whether an order is “unlawful” is

a legal question, subject to de novo review. Id., citing In re Application of Alamo

Solar I, L.L.C., 2023-Ohio-3778, ¶ 11.

{¶ 14} The “unreasonable” part of the standard applies to the “board’s

determinations under R.C. 4906.10(A), which requires the board to determine a

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project’s compliance with broad statutory criteria.” Id. at ¶ 13, citing In re

Application of Firelands Wind, L.L.C., 2023-Ohio-2555, ¶ 14-15. The “open-

textured nature of the terms” within those statutory criteria afford the board “a

degree of discretion” in its decision-making. Firelands Wind at ¶ 15. We review

the board’s exercise of that discretion for reasonableness. See Alamo Solar at ¶ 16;

Firelands Wind at ¶ 15.

{¶ 15} A board decision is “unreasonable when the evidence clearly does

not support it or when [the] decision is internally inconsistent.” Alamo Solar at

¶ 16, citing Firelands Wind at ¶ 15. “We do not reweigh the evidence or second-

guess the board on questions of fact” when determining whether its order is

unreasonable. (Cleaned up.) Firelands Wind at ¶ 17. Nor do we decide whether a

board order is wise as a matter of public policy. See Harvey Solar at ¶ 3

(“Overarching public-policy questions about the general societal value of

commercial solar farms are the province of the General Assembly, not this court.”).

A. Whether the board obtained the required visual-impact information to assess

the project’s effect on the neighborhood viewshed

{¶ 16} In their first proposition of law, the local governments contend that

the board erred in approving the Oak Run solar-farm project because Oak Run

failed to take steps to minimize adverse visual impacts as required by Adm.Code

4906-4-08(D)(4)(f), 2017-2018 Ohio Monthly Record 2-2998, 2-3002 (effective

Apr. 26, 2018). In their view, because mitigation measures have not been put in

place, residents and passersby will have no means to escape the project’s

“unpleasant appearance.” The local governments maintain that by failing to require

Oak Run to implement effective mitigation of the facility’s visual impacts, the

board did not find and determine that the conditions for approving the facility were

met under R.C. 4906.10(A)(3) (“the facility represents the minimum adverse

environmental impact”) and (A)(6) (“the facility will serve the public interest,

convenience, and necessity”).

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{¶ 17} Adm.Code 4906-4-08(D)(4)(f) provides that an applicant must

“[d]escribe measures that will be taken to minimize any adverse visual impacts

created by the facility, including . . . visual screening.” The local governments fault

Oak Run for not including a “vegetative screening plan” in its application and for

failing to complete a comprehensive outreach to local residents to identify the

residents’ preferences regarding such screening. But the administrative rule does

not require that Oak Run submit a “vegetative screening plan,” so this argument

fails. See Alamo Solar, 2023-Ohio-3778, at ¶ 38 (observing that Adm.Code 4906-

4-08(D)(4)(f) “doesn’t require that the applicant commit to any specific type of

visual screening”).

{¶ 18} Nor does the rule require that Oak Run conduct any form of public

outreach. However, in its application, Oak Run stated that it had engaged in public

outreach and that it “is committed to working with those residents to develop and

implement a vegetative screening plan for the Project.” The local governments do

not cite any authority requiring Oak Run to perform a level of public outreach that

matches their preference.

{¶ 19} Moreover, the local governments fail to acknowledge that Oak Run

did “[d]escribe measures,” Adm.Code 4906-4-08(D)(4)(f), in its application for

minimizing any adverse visual impacts of its facility. First, Oak Run stated that it

had sited perimeter fencing at least 150 feet from the edge of adjacent roads and

established 300-foot setbacks from adjacent residences. Second, it committed to

using agricultural-style fencing that blends in with the surrounding landscape,

eschewing industrial-looking chain-link fencing with barbed wire on top as is

commonly used for such facilities. Finally, it committed to retaining existing trees

and discussed vegetative screening with adjacent residents. The local governments

are correct that these descriptions do not convey that Oak Run will “shield” the

public’s views of the facility, but the law does not require Oak Run to go so far.

See Alamo Solar at ¶ 43 (observing that the applicants seeking board approval to

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build a solar farm were not required to “completely screen” all views of their

facilities and that the law “does not require the elimination of all adverse impacts”

by such facilities).

{¶ 20} Notwithstanding the lack of an explicit statutory or administrative-

rule requirement that an applicant use vegetative screening to minimize any adverse

visual impacts caused by its facility, the board’s staff recommended that Oak Run

develop a landscape-and-lighting plan that “include[s] measures such as . . .

vegetative screening.” That recommendation was incorporated into the stipulation,

and the board adopted it as a condition of granting the construction certificate. See

2024 WL 1465954 at *55, 81. Under the board’s opinion and order, Oak Run now

must file with the board a landscape-and-lighting plan in consultation with a

licensed landscape architect, and the plan must address the facility’s aesthetic and

lighting impacts. Among other things, the plan must provide for vegetative

screening that enhances views from affected residences, blends with the

surrounding environment (unless an alternative arrangement is reached with an

affected property owner), and addresses aesthetic impacts on passersby. Oak Run

must also maintain vegetative screening for the life of the facility, replace failed

plantings to ensure a 90 percent vegetation-survival rate after five years, maintain

perimeter fencing for the life of the project, and install motion-activated lights

focused narrowly inwards toward the facility. Once filed, the board’s staff will

review and confirm that the plan complies with this condition.

{¶ 21} The local governments mostly ignore the aspects of this condition

that will help minimize any adverse visual impacts created by the facility. Instead,

they fault the board for not requiring Oak Run to consult with affected residents

about reducing the adverse visual impacts and for leaving plan details to be worked

out in the future rather than being tested at the board’s hearing. But the force of the

former concern diminishes in view of the board’s finding that Oak Run has

“promised to continue working with local residents on the development and

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implementation of the final vegetative screening plan for the Project,” id. at *57.

As to the latter concern, “[i]t is well-settled that the board is not required to resolve

every issue before issuing a certificate.” Harvey Solar, 2025-Ohio-1503, at ¶ 24.

Indeed, we have approved the board’s procedure of allowing an applicant seeking

a certificate to construct a solar farm to “flesh out details in the final version of the

landscape plan as the construction process evolves,” id. at ¶ 25.

{¶ 22} We accordingly reject the local governments’ first proposition of

law.

B. Whether the board obtained the required visual-impact information to assess

the proposed facility from public vantage points

{¶ 23} In their second proposition of law, the local governments focus again

on visual impacts, but this time under Adm.Code 4906-4-08(D)(4)(e), which

requires an applicant to “[p]rovide photographic simulations or artist’s pictorial

sketches of the proposed facility from public vantage points that cover the range of

landscapes, viewer groups, and types of scenic resources found within the study

area.” 2017-2018 Ohio Monthly Record 2-998, 2-3002 (effective Apr. 26, 2018).

The local governments claim that Oak Run’s project does not meet the rule’s

requirements because Oak Run did not provide the board with a photographic

simulation or sketch showing the facility’s substations, which contain support

structures ranging in height from about 85 to 115 feet. The local governments

maintain that an applicant’s compliance with the rule enables the board to make the

proper determinations under R.C. 4906.10(A)(2) (“[t]he nature of the probable

environmental impact”), 4906.10(A)(3) (“the facility represents the minimum

adverse environmental impact”), and 4906.10(A)(6) (“the facility will serve the

public interest, convenience, and necessity”).

{¶ 24} The board’s rules define “facility” as “the proposed major utility

facility and all associated facilities.” Adm.Code 4906-1-01(W), 2015-2016 Ohio

Monthly Record 2-1852, 2-1853 (effective Dec. 11, 2015). In its opinion and order,

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the board did not determine that the project’s substations fall outside the meaning

of that term. But neither did it find that Oak Run’s photographic simulations of the

project display the proposed substations; indeed, one of Oak Run’s witnesses

testified that the application does not contain any simulations of the substations.

Instead, the board determined that “at distances of approximately 0.4 miles, Oak

Run’s photo simulations show that the Project visibility decreases and is mostly

absorbed into agricultural landscape” and that the project’s visibility would

continue to decrease over greater distances. 2024 WL 1465954 at *72.

{¶ 25} The board’s rationale for determining that Oak Run’s proposed solar

farm “balance[s] the Project’s public interest, convenience, and necessity” and

satisfies the criteria set forth in R.C. 4906.10(A)(2), (3), and (6), 2024 WL 1465954

at *72, misses the mark. Of course an object’s visibility decreases as one gets

farther away from it, especially at a distance of almost a half mile. Adm.Code

4906-4-08(D)(4)(e), however, requires an applicant to do more than validate this

truism. By failing to provide any photographic simulations or pictorial sketches

from public vantage points that show the substations’ support structures, which

appear to be some of the project’s tallest features, Oak Run did not meet the rule’s

requirements.

{¶ 26} The board rejoins that the local governments could have issued

discovery requests and raised any issues they had with expert witnesses at the

hearing. But under R.C. 4906.06(A)(6), an applicant for a certificate of

construction of a major utility facility shall file with the board an application

containing certain required information and “[s]uch other information as the

applicant may consider relevant or as the board by rule or order may require.”

Plainly, this statutory provision contemplates that an applicant will provide the

board with the necessary information in the first instance (i.e., upon filing its

application) and not wait to do so during discovery or at the board’s hearing.

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{¶ 27} The board also asserts that to prevail in their contest against the

issuance of a construction certificate, the local governments had to present

“compelling evidence” establishing that Oak Run’s application was incomplete.

We find this argument puzzling, given that in its merit brief, the board does not

dispute the local governments’ assertion that Oak Run failed to depict the

substations in a photographic simulation or pictorial sketch.

{¶ 28} For its part, Oak Run seems to contend that the substations do not

constitute “facilities” under Adm.Code 4906-1-01(W). Under this view, Oak Run

had no obligation to provide a photographic simulation or pictorial sketch of the

substations. Although the board now seems to agree in its merit brief that the

substations do fall within the meaning of “facility,” it did not make such a

determination in its orders. However, as we recently explained, “[a]n appellee may

defend a lower tribunal’s decision by asserting alternative grounds for affirmance

than those adopted by the tribunal, without having to file a protective cross-appeal.”

In re Applications of Dayton Power & Light Co., 2025-Ohio-2953, ¶ 97, citing

Fedor v. United Healthcare, Inc., 976 F.3d 1100, 1107 (10th Cir. 2020).

Accordingly, we address Oak Run’s argument that the proposed substations do not

constitute “facilities” under the rule.

{¶ 29} As explained above, “facility” means “the proposed major utility

facility and all associated facilities.” Adm.Code 4906-1-01(W). The board found,

and there is no dispute, that Oak Run’s proposed solar farm is a “major utility

facility,” as defined in R.C. 4906.01. But the term “facility” also encompasses “all

associated facilities,” which is defined by rule as “rights-of-way, land, permanent

access roads, structures, tanks, distribution lines and substations necessary to

interconnect the facility to the electric grid . . . and other equipment used for the

generation of electricity.” (Emphasis added.) Adm.Code 4906-1-01(F)(3), 2015-

2016 Ohio Monthly Record 2-1852 (effective Dec. 11, 2015). When considering

these definitions together, it is clear that the substations for Oak Run’s project are

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facilities and Oak Run was therefore required to provide the board with the visual-

impact information set forth in Adm.Code 4906-4-08(D)(4)(e).

{¶ 30} Oak Run contends that some of the substations will be minimally

visible because they will be located well inside the footprint of the project and

others will be screened by trees. But the only evidence it offers in support of this

assertion is a top-down aerial photograph that appears to have been taken by a

camera thousands of feet in the air. A perspective from that position does not square

with the ordinary meaning of “public vantage point,” as that term is used in

Adm.Code 4906-4-08(D)(4)(e), because a depiction of the facility from a high-

flying aircraft is not from a “point of view” that is “accessible or visible to the

community,” Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003) (defining

“vantage point” and “public,” respectively).

{¶ 31} We sustain the local governments’ second proposition of law: by

failing to depict the proposed substations in accordance with Adm.Code 4906-4-

08(D)(4)(e), Oak Run deprived the board of the information necessary for it to

make the substantive statutory determinations regarding the visual impact of the

proposed solar farm. We therefore reverse the board’s orders in part and remand

this matter to the board to consider evidence bearing on proper photographic

simulations or an artist’s pictorial sketches of the proposed substations.

C. Whether the board obtained the required water-related information

{¶ 32} In their third proposition of law, the local governments argue that the

board erred in approving the project because Oak Run’s application did not contain

the water-related information required by Adm.Code 4906-4-07(C)(1)(d) and

(C)(2)(b), 2015-2016 Ohio Monthly Record 2-1886, 2-1887 (effective Dec. 11,

2015). The local governments argue that had the board obtained the information,

it would have been able to make an informed decision about whether construction

activities would drive soil-laden water into streams, resulting in polluted water.

They contend that because Oak Run’s application did not contain the information

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required by the rule, the board did not make the necessary findings and

determinations under R.C. 4906.10(A)(2) (“[t]he nature of the probable

environmental impact”), 4906.10(A)(3) (“the minimum adverse environmental

impact”), 4906.10(A)(5) (the facility’s compliance with various statutes and rules),

and 4906.10(A)(6) (“the facility will serve the public interest, convenience, and

necessity”).

1. Adm.Code 4906-4-07(C)(1)(d)

{¶ 33} Adm.Code 4906-4-07(C)(1)(d) requires an applicant to provide

“information regarding preconstruction water quality and permits” by describing

“the existing water quality of the receiving stream based on at least one year of

monitoring data, using appropriate Ohio environmental protection agency reporting

requirements.” The local governments argue that Oak Run did not comply with

this provision of the rule in view of the testimony of one of Oak Run’s witnesses,

who said that the company did not submit one year of monitoring data addressing

existing water quality in receiving streams.

{¶ 34} Even if that witness’s testimony shows that Oak Run did not comply

with Adm.Code 4906-4-07(C)(1)(d), we fail to see how the local governments have

shown prejudice from Oak Run’s noncompliance with that provision of the rule.

We have said that “a showing of prejudice by the party seeking reversal” is “a basic

point of procedure that is necessary to reverse a [board] order.” (Cleaned up.) In

re Application of Ohio Power Co., 2014-Ohio-4271, ¶ 31; see also In re Application

of Duke Energy Ohio, Inc., 2021-Ohio-3301, ¶ 16 (observing that even if the board

“misapplied its filing requirements,” the appellant still had to show that it was

harmed by the misapplication to warrant reversal of the board’s order); In re

Application of Champaign Wind, L.L.C., 2016-Ohio-1513, ¶ 15 (“Even if the board

errs in a procedural or evidentiary ruling, this court will not reverse the board’s

order unless the error prejudiced, i.e., meaningfully affected, the appellant.”).

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{¶ 35} The local governments are concerned that Oak Run’s project will

drive eroded soil into nearby streams by way of stormwater runoff, thereby

degrading the water quality. While we acknowledge that knowing the preexisting

water quality of nearby streams is necessary to determine how a solar farm will

affect that quality, the local governments fail to cite any evidence establishing that

the magnitude of runoff from Oak Run’s project will be meaningful. They point to

the testimony of an Oak Run witness who said that construction work “can” carry

eroded soil into nearby streams, but that general statement fails to convey any

details. They then speculate that Oak Run’s extensive earthmoving will create

“substantial opportunities” for soil-laden stormwater to flow into streams. But they

do not cite any evidence to support that statement. The local governments simply

have not explained how the water quality will be affected by Oak Run’s project,

which makes the preexisting water quality something of a moot point. Furthermore,

as explained below, Oak Run presented evidence that the construction of its solar

farm would not have a meaningful impact on nearby receiving streams.

{¶ 36} What is more, in its application for the construction certificate, Oak

Run states that the project has been designed to avoid permanent impacts on streams

and wetlands and that stormwater discharges are not expected to be significant and

would be only temporary during construction of the project. It further states that

the project will incorporate a stormwater-pollution-prevention plan (“SWPPP”)

that, among other things, adheres to specifications set out in the Rainwater and Land

Development Manual published by the Ohio Department of Natural Resources

(“ODNR”). The application establishes that the SWPPP will prevent construction

activities from harming water resources.

{¶ 37} In sum, even if Oak Run did not strictly comply with Adm.Code

4906-4-07(C)(1)(d), the local governments have failed to show harm from Oak

Run’s noncompliance with that provision.

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2. Adm.Code 4906-4-07(C)(2)(b)

{¶ 38} Adm.Code 4906-4-07(C)(2)(b) provides that an applicant must

submit “[i]nformation regarding water quality during construction” by providing

“[a]n estimate of the quality and quantity of aquatic discharges from the site

clearing and construction operations, including runoff and siltation from dredging,

filling, and construction of shoreside facilities.” The local governments argue that

Oak Run did not comply with that provision based on the testimony of an Oak Run

witness who stated that the application does not contain an estimate of the quality

and quantity of aquatic discharge during site-clearing and construction operations.

They conclude that the board acted unlawfully and unreasonably in issuing a

certificate without this information.

{¶ 39} However, our recent decision in Harvey Solar, 2025-Ohio-1503,

counsels otherwise. In that case, we rejected a similar argument because the

application explained that the project would not create any identifiable water-

related discharges and that construction would entail limited activities requiring

management of stormwater pollutants. Id. at ¶ 47-51. The application also

explained that no significant changes in flow patterns or erosion were anticipated

given the site’s level ground, which required only limited grading. Id. at ¶ 51. We

found that those descriptions met the rule’s requirement that an application provide

an “‘estimate’ of the ‘quality and quantity of aquatic discharges’ from construction

operations.” Id., quoting Adm.Code 4906-4-07(C)(2)(b); see also Alamo Solar,

2023-Ohio-3778, at ¶ 64 (reaching a similar conclusion).

{¶ 40} Harvey Solar is instructive here. Oak Run explained in its

application that project construction will not produce point-source aquatic

discharges to streams or wetlands, and it notes that stormwater discharges during

construction will be insignificant and temporary. Additionally, Oak Run stated in

its application that significant changes in flow patterns are unexpected, noting that

the project has been sited on agricultural land that will require minimal clearing and

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grading. We therefore conclude that Oak Run complied with Adm.Code 4906-4-

07(C)(2)(b).

{¶ 41} We accordingly reject the local governments’ third proposition of

law.

D. Whether the board obtained the required plant and wildlife information

{¶ 42} In their fourth proposition of law, the local governments assert that

the board erred in approving the project without obtaining the plant and wildlife

information required by Adm.Code 4906-4-08(B)(1)(c) and (d), 2017-2018 Ohio

Monthly Record 2-2998, 2-3000 (effective Apr. 26, 2018). In the local

governments’ view, had the board obtained this information, it would have been

positioned to make an informed decision about whether the project would harm

plants and wildlife in the area. The local governments maintain that because the

board did not obtain the information required by these rule provisions, it violated

R.C. 4906.10(A)(2) (“[t]he nature of the probable environmental impact”),

4906.10(A)(3) (“the minimum adverse environmental impact”), and 4906.10(A)(6)

(“the facility will serve the public interest, convenience, and necessity”).

1. Adm.Code 4906-4-08(B)(1)(c)

{¶ 43} Adm.Code 4906-4-08(B)(1)(c) requires that an applicant “[p]rovide

the results of a literature survey of the plant and animal life within at least one-

fourth mile of the project area boundary. The literature survey shall include aquatic

and terrestrial plant and animal species that are of commercial or recreational value,

or species designated as endangered or threatened.” The local governments claim

that the board ran afoul of the rule because Oak Run performed a literature search

for only threatened and endangered plant and animal species, eschewing other

species that are of commercial or recreational value but are not threatened or

endangered.

{¶ 44} The record shows that in performing its literature search, Oak Run

relied on information compiled by ODNR and the United States Fish and Wildlife

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Service pertaining to threatened and endangered species (“listed species”) in the

project area. Based on this information, Oak Run identified 25 listed species in the

project area.

{¶ 45} But while the local governments are technically correct that Oak

Run’s literature search did not extend beyond listed species, they ignore that other

information in the record touches on the project’s potential effect on unlisted

species. For example, Oak Run presented the direct testimony of Courtney

Dohoney, a senior associate project manager with Stantec Consulting Services,

Inc., which managed the associated surveys and assessments that Oak Run provided

to the board in conjunction with its application. Dohoney has been an

environmental consultant in the renewable-energy sector for 17 years and has a

Master’s degree in environmental management from Duke University. Dohoney

testified that the project was not anticipated to affect unlisted wildlife. She

explained Oak Run’s plan to develop wildlife corridors to allow wildlife to move

through the project area and to design perimeter fencing that would keep the area

stream open and unobstructed for wildlife. Given this testimony, it is hard to see

how the local governments were prejudiced by Oak Run’s failure to conduct a

literature search for unlisted wildlife. See Ohio Power Co., 2014-Ohio-4271, at

¶ 31.

{¶ 46} As for unlisted plants, Oak Run’s application contained information

establishing that the project site is predominantly composed of cropland, with

smatterings of upland forest, grassland, scrub shrub, and hydrophytic vegetation.

That is, the application apprised the board of the existence of plant species outside

of those classified as threatened or endangered. Oak Run accordingly provided the

board with what the local governments claim is missing.

{¶ 47} In sum, we conclude that the local governments have not been

prejudiced by any deficiency in Oak Run’s literature search.

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2. Adm.Code 4906-4-08(B)(1)(d)

{¶ 48} Adm.Code 4906-4-08(B)(1)(d) requires an applicant to “[c]onduct

and provide the results of field surveys of the plant and animal species identified in

the literature survey.” The local governments argue that Oak Run did not comply

with this rule provision, because it “did no field surveys other than to look for bats.”

The literature survey submitted with Oak Run’s application identified 25 listed

species, but Dohoney testified that the field survey conducted as part of Oak Run’s

application was limited to bats. Adm.Code 4906-4-08(B)(1)(d) directs that the

applicant provide the results of a field survey of the species identified in the

literature survey, not a subset of those species, but it does not “prescribe[] a specific

methodology for how field surveys are to be conducted,” Alamo Solar, 2023-Ohio-

3778, at ¶ 51.

{¶ 49} Even with this in mind, Oak Run did not comply with the rule in

conducting its field survey, because its literature survey listed birds, fish, and

mussels, in addition to bats. However, for us to reverse the board’s orders, the local

governments must show that they have been prejudiced by this rule violation. They

have not made that showing. Dohoney testified, and the board’s staff reported, that

the Oak Run project is not expected to result in significant impacts to listed species.

And as previously stated, the evidence establishes that the project is not anticipated

to impact unlisted wildlife. As for plants, the local governments failed to furnish

any evidence establishing that a field survey for plants would have been likely to

uncover the existence of new vegetation beyond that which is already known to be

in the area. And besides, the staff report noted that vegetative impacts would

primarily affect agricultural land. In sum, we conclude that the local governments

were not prejudiced by any deficiencies in Oak Run’s field survey.

{¶ 50} We accordingly reject the local governments’ fourth proposition of

law.

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3. The prejudice analysis for the third and fourth propositions of law differs

from the analysis for the second proposition of law

{¶ 51} The first and third opinions concurring in part and dissenting in part

criticize this opinion for analyzing the second proposition of law differently from

the third and fourth propositions of law regarding the question whether the local

governments have been prejudiced by Oak Run’s statutory noncompliance. See

opinion concurring in part and dissenting in part of Kennedy, C.J., ¶ 80-81; opinion

concurring in part and dissenting in part of Hawkins, J., ¶ 116, 121. Those separate

opinions equate Oak Run’s failure to provide the board with certain visual-impact

information under Adm.Code 4906-4-08(D)(4)(e) with its failure to provide the

board with baseline water-quality information under Adm.Code 4906-4-

07(C)(1)(d) and (C)(2)(b) and plant and wildlife information under Adm.Code

4906-4-08(B)(1)(c) and (d). However, in doing so, the first and third opinions

concurring in part and dissenting in part mistakenly collapse the prejudice analysis

into the statutory-compliance analysis. Oak Run’s project would not have the same

effect on local water quality and plants and wildlife as it would have on the

neighborhood viewshed; that difference affects our prejudice analysis under each

proposition of law and results in different conclusions regarding the resulting harm

to the local governments.

{¶ 52} As explained above, an applicant’s noncompliance with a statutory

requirement alone is not enough to warrant reversal of a board order. A party

seeking reversal of a board order must also show that it has been prejudiced by the

applicant’s statutory noncompliance. See Ohio Power Co., 2014-Ohio-4271, at

¶ 31. To find prejudice, we must be presented with record evidence showing that

the project’s impact on the local area would meaningfully change whatever the

baseline metric is. Here, the local governments have not shown how Oak Run’s

project would meaningfully affect the water quality or plants and wildlife in the

project area. Therefore, the record evidence supports our conclusions under the

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third and fourth propositions of law that the local governments have not shown

prejudice. And since there would likely be minimal impact on local water quality

and plants and wildlife with construction of the project, providing baseline

information regarding those metrics becomes less essential to the analysis, because

the project would not significantly change those things. To hold otherwise would

condense the two-part inquiry into the question whether an applicant strictly

complied with the statutory requirements when seeking a certificate for the

construction of a major utility facility.

{¶ 53} However, the visual-impact information that an applicant is required

to provide the board under Adm.Code 4906-4-08(D)(4)(e) is different. Oak Run

plans to erect several support structures that will range in height between 85 and

115 feet. Oak Run does not dispute the eventual construction of these structures

and instead argues that such structures do not statutorily qualify as “facilities,” an

argument that we reject. Whereas the local governments have not shown that the

project would affect the preexisting water quality or the local plants and wildlife,

the difference in terms of Oak Run’s failure to present the requisite visual-impact

information is significant. Constructing several 85- to 115-foot structures would

present a significant departure in the viewshed from what the baseline is (i.e., the

viewshed without those structures).

{¶ 54} Because the construction of the support structures would

significantly alter the viewshed, the visual-impact information required under the

administrative rules becomes more crucial, and the local governments have been

prejudiced by Oak Run’s failure to provide that information. This is the key

difference between the local governments’ second proposition of law and its third

and fourth propositions of law and why we find that the local governments have

been prejudiced only by Oak Run’s failure to provide the board with the requisite

visual-impact information.

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E. Whether the board adequately accounted for safety concerns

{¶ 55} In their fifth proposition of law, the local governments contend that

the board erred in finding that Oak Run’s project complies with R.C. 4906.10(A)(2)

(“[t]he nature of the probable environmental impact”), 4906.10(A)(3) (“the facility

represents the minimum adverse environmental impact”), and 4906.10(A)(6) (“the

facility will serve the public interest, convenience, and necessity”), despite the

threats posed to the area by the project’s planned BESS. The local governments

say that if the BESS were to fail, then fires and toxic gas could spread into the

community. The local governments contend that despite knowing these risks, the

board did not adopt adequate measures to protect against them.

1. Jurisdiction

{¶ 56} Before addressing the merits of this argument, we must determine

whether we have jurisdiction to do so. According to Oak Run and the board,

because the local governments failed to set forth the argument in their amended

notice of appeal, this court lacks jurisdiction to address it. They are mistaken.

{¶ 57} The procedure for seeking reversal of a board order is by filing a

notice of appeal “setting forth the order appealed from and the errors complained

of.” R.C. 4903.13; see also R.C. 4906.12. We have held that “[t]he assignments

of error enumerated in a notice of appeal ‘delimit the issues’ for the court’s

consideration.” In re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio,

Inc., 2017-Ohio-7566, ¶ 44, quoting Cincinnati Gas & Elec. Co. v. Pub. Util.

Comm., 2004-Ohio-5466, ¶ 21. Accordingly, “[a] claim not set forth in the notice

of appeal deprives the court of jurisdiction to consider it.” Id.

{¶ 58} In their amended notice of appeal, the local governments complain

of eight errors, none of which explicitly speak in terms of the local governments’

safety concerns associated with the BESS. Even so, the local governments’ sixth

assignment of error in its amended notice of appeal cites pages 2 and 40 through 44

of its rehearing application filed with the board, and those pages do speak to the

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local governments’ concerns about the BESS. “We have held that the sufficiency

of a notice of appeal is ‘judged not merely by the form of words used but also by

their context.’” In re Letter of Notification Application of Columbia Gas of Ohio,

Inc., 2024-Ohio-4747, at ¶ 20, quoting Lycourt-Donovan at ¶ 45 (concluding that

the appellant had preserved a claim for review because its notice of appeal cited to

the pages of its rehearing application where it raised its claim of error to the Public

Utilities Commission). Applying this precept, we conclude that the local

governments preserved their BESS argument, and we therefore have jurisdiction to

address the merits of the local governments’ fifth proposition of law.

2. Merits

{¶ 59} Turning to the merits of the local governments’ fifth proposition of

law, the record establishes that Oak Run’s project will house a BESS consisting of

approximately 328 battery containers, along with 82 inverters and 82 transformers.

The BESS will consist of two equipment areas that occupy about 11 acres each

within the project area. Oak Run plans to use lithium-ion-battery technology.

{¶ 60} The local governments maintain that the board did not go far enough

to protect against the risks of harm posed by the BESS. They point to evidence

showing that lithium-ion batteries can catch fire and release toxic gas. And there

appears to be no dispute that there is no effective way to extinguish a lithium-ion-

battery fire and that after a fire starts, the only recourse is to try to prevent the fire

from spreading. In view of these risks, the local governments assert that the board

should not have approved the project without requiring Oak Run to provide for

measures to prevent the spread of fire and the release of fumes into the community

and that the board should have been more thorough in evaluating the availability of

water supplies to contain a fire once it starts.

{¶ 61} However, the local governments fail to contend with the full

evidentiary record regarding the BESS, its benefits, any potential risks it poses, and

the steps Oak Run would take to minimize those risks. Based on its review of the

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evidence, the board found that the risks posed by the BESS do not outweigh the

benefits. See 2024 WL 1465954 at *74; 2024 WL 4039785 at *8. As the board

observed, even the evidence put forth by one member of the local governments

established that the threat posed by lithium-ion batteries is unlikely to materialize

so long as the system is properly maintained, monitored, and secured. 2024 WL

1465954 at *74

{¶ 62} The local governments have failed to show that the BESS would not

be properly maintained, monitored, or secured, especially considering that Oak Run

intends to use warning signs, fencing, and gates to restrict access to the BESS.

Further, the BESS will be sited with enough distance from other equipment to

ensure that fire propagation does not occur, and the BESS will be located almost

one mile away from the nearest neighbors. The BESS will conform to the National

Fire Protection Association’s Standard for the Installation of Stationary Energy

Storage Systems, and a fire-protection engineer will review the fire-protection

design of the facility. Oak Run will develop an emergency-services-and-response

plan in consultation with local authorities, provide fire and emergency responders

with training and proper firefighting equipment to enable them to respond to

emergency situations at the BESS, and collaborate with local authorities to ensure

that sufficient water resources and a long-term water supply are available for any

firefighting needs, in accordance with the applicable fire code.

{¶ 63} The local governments object to the board’s allowing Oak Run to

work out some of the safety-related details in the future. As an example, one of the

conditions the board imposed in approving Oak Run’s application and granting it a

construction certificate provides that at least 30 days before the preconstruction

conference, Oak Run must file its emergency-services-and-response plan on the

board’s docket for the staff’s review. See 2024 WL 1465954 at *54-55, citing Joint

Exhibit No.1 (the staff’s report), Condition 17; 2024 WL 4039785 at *8.

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{¶ 64} “It is well-settled that the board is not required to resolve every issue

before issuing a certificate.” Harvey Solar, 2025-Ohio-1503, at ¶ 24. The board is

empowered to “impose conditions that are subject to monitoring for compliance by

board staff.” Alamo Solar, 2023-Ohio-3778, at ¶ 41. Here, the board’s decision to

allow Oak Run to work out some of the safety-related details of the proposed solar

facility and to impose on Oak Run certain conditions regarding those details does

not warrant reversal here.

{¶ 65} The first and third opinions concurring in part and dissenting in part

acknowledge that “the board is not required to resolve every issue before issuing a

certificate,” only to then turn around and require exactly that with respect to this

proposition of law. (Cleaned up.) Opinion concurring in part and dissenting in part

of Kennedy, C.J., at ¶ 82; opinion concurring in part and dissenting in part of

Hawkins, J., at ¶ 123, 127. Clearly, there is a limit to the details that can be fleshed

out in the future, but the deficiencies that the local governments allege regarding

the safety concerns presented by the BESS are well within the boundaries of what

can be fleshed out at a later date. There is no evidence in the record showing that

the risks associated with the BESS will materialize into actual harm beyond the

possibility that they could materialize into actual harm—something that is true with

any potentially hazardous material, regardless of the preventative steps taken—and

the board has imposed certain requirements on Oak Run to address the local

governments’ safety concerns. We think the BESS’s ultimate compliance with the

National Fire Protection Association’s Standard for the Installation of Stationary

Energy Storage Systems is a better safeguard than this court’s collective armchair

firefighting expertise.

{¶ 66} We accordingly reject the local governments’ fifth proposition of

law.

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F. Whether the board obtained a completed application from Oak Run

{¶ 67} In their sixth proposition of law, the local governments echo

previous themes, namely, that Oak Run did not file a complete application. But

whereas before, the local governments focused on Oak Run’s compliance with

particular board rules, here they focus more on first principles. They argue that

Ohio law puts the burden on an applicant to prove that its project meets the

requirements set forth in R.C. 4906.10(A), and they stress that the fairness and

accuracy of the board’s adjudicatory process, as well as the public’s ability to

meaningfully participate in that process, depend on the existence of a completed

application that has been submitted in compliance with the board’s rules. They

argue that by allowing this matter to proceed to a hearing and decision without a

complete application, the board shifted the burden of proof from Oak Run to the

local governments, requiring the latter to prove that the project does not comply

with the statute. The local governments also suggest that allowing this matter to

proceed to a hearing without a complete application is itself grounds for reversal of

the board’s orders.

1. Jurisdiction

{¶ 68} Before addressing the merits of this argument, we must again decide

whether we have jurisdiction over it. According to Oak Run and the board, because

the local governments failed raise this argument in their amended notice of appeal,

we lack jurisdiction to address it. Again, they are mistaken.

{¶ 69} None of the eight errors complained of in the local governments’

amended notice of appeal are written in the language reflected in their sixth

proposition of law. Even so, each error listed in the amended notice of appeal cites

pages 47 through 53 of the local governments’ rehearing application, which

advances the same argument contained in their sixth proposition of law. By citing

the relevant pages of their rehearing application in their amended notice of appeal,

the local governments have preserved their sixth proposition of law under R.C.

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4903.13. See Notification Application of Columbia Gas, 2024-Ohio-4747, at ¶ 20.

Accordingly, we reject Oak Run’s and the board’s jurisdictional argument and will

address the merits of the local governments’ sixth proposition of law.

2. Merits

{¶ 70} As previously stated, an applicant for a certificate of construction of

a major utility facility shall file with the board an application containing certain

statutorily required information and “[s]uch other information as the applicant may

consider relevant or as the board by rule or order may require.” R.C.

4906.06(A)(6). After receiving an application, the board’s chairperson shall

examine it and determine whether it complies with Adm.Code 4906-1 through

4906-7. Adm.Code 4906-3-06(A), 2015-2016 Ohio Monthly Record 2-1877

(effective Dec. 11, 2015). Within 60 days of receipt, the chairperson shall either

accept the application as complete or reject it as incomplete. Id. Upon receiving

an application that complies with R.C. 4906.06, the board shall fix a date for a

public hearing. R.C. 4906.07(A).

{¶ 71} In this case, the board informed Oak Run that it had filed a statutorily

compliant application, enabling the board’s staff to begin reviewing the application,

but the board cautioned Oak Run that staff might request additional information.

Some of the local governments disagreed that Oak Run had filed a statutorily

compliant application, so they filed a motion with the board requesting that it issue

an order directing Oak Run to file a supplement to its application. Among other

things, some of the local governments argued before the board, as they do here, that

Oak Run’s application did not contain enough information concerning visual

impacts, water-quality and mitigation measures, and plants and wildlife. At the

board’s hearing, an attorney examiner orally denied the motion, and in its opinion

and order, the board affirmed this ruling, explaining that the local governments had

an opportunity to request further information through discovery and to raise issues

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with expert witnesses during the evidentiary hearing. See 2024 WL 1465954 at

*37; 2024 WL 4039785 at *9.

{¶ 72} The fact that the board disagreed with the local governments about

the completeness of Oak Run’s application does not mean, as the local governments

contend, that the board shifted the burden of proof to them to prove that the project

does not comply with R.C. 4906.10(A). To begin with, the local governments have

not identified a guiding principle to assist us in determining when an administrative

agency has flipped the burden of proof from an applicant to an intervenor. Rather,

they seem to intuit that because they perceived the application to be incomplete,

they were left to disprove its completeness. The local governments must offer more

than a bare assertion to show reversible error. See Duke Energy Ohio, 2021-Ohio-

3301, at ¶ 35 (“The lack of an authority-based argument defeats [appellant’s]

contention.”). Beyond this, the local governments’ premise is simply wrong.

Nothing in the board’s decision conveys that the board presupposed that Oak Run’s

project was in accord with R.C. 4906.10(A)’s criteria and left it to the local

governments to disprove this presupposition. To the contrary, the board’s opinion

and order plainly establishes that the board viewed the evidence as “support[ing] a

finding that all the criteria in R.C. 4906.10(A) are satisfied for the construction,

operation, and maintenance of the Facility,” 2024 WL 1465954 at *81.

{¶ 73} The local governments also suggest that their ability to meaningfully

participate in the board’s process was thwarted by Oak Run’s incomplete

application.2 In facing such arguments before, we have observed that while an

2. The local governments also say that Oak Run’s incomplete application thwarted the general

public’s ability to provide informed input on the project. Because the general public is not a party

to this case and the local governments are, we focus on the interests of the latter. See State ex rel.

Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 10 (“The judicial power is the power to decide

specific cases between conflicting parties.”), citing Staton v. State Tax Comm., 114 Ohio St. 658,

671-672 (1926). That said, it bears mentioning that before the board held its evidentiary hearing on

Oak Run’s application, it held a local public hearing in the community near where the project will

be sited, and at the time of the local public hearing, the board’s publicly available docket contained,

among other things, the staff’s report and dozens of filings from Oak Run containing thousands of

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“information asymmetry will often exist between [an applicant] and [the

applicant’s] opponent,” tools remain available for an opponent “to make its case.”

Duke Energy Ohio at ¶ 25, citing Adm.Code. 4906-2-14 (discovery), Adm.Code

4906-2-18 (depositions), Adm.Code 4906-2-22 (motions to compel discovery), and

Adm.Code 4906-2-23 (subpoenas). The same is true here. In addition to the tools

outlined in Duke Energy Ohio, the local governments had the opportunity in this

case to present testimony from their own witnesses, submit evidence for the record,

and cross-examine Oak Run’s witnesses. These tools enabled the local

governments to meaningfully participate in the case.

{¶ 74} The local governments assert in their merit brief that discovery and

cross-examination of witnesses cannot produce the studies required by the board’s

rules, because those studies “do not exist until an applicant generates them.” While

that may be true, if discovery and cross-examination by an applicant’s opponent

establish that the applicant failed to produce a study contemplated by a board rule

and that the opponent suffered harm from the applicant’s violation of the rule, then

the opponent will have shown that the board committed reversible error in issuing

an order approving the application, and we may accordingly enter judgment

reversing the board’s order and directing the board on remand to comply with its

rule.

{¶ 75} Lastly, the local governments are mistaken in their argument that

allowing the matter to proceed to a hearing without a complete application is itself

grounds for reversal. R.C. 4906.07(A) provides that the commission shall fix a date

for a public hearing after receiving an application that complies with R.C. 4906.06.

But as discussed above, to secure reversal of the board’s orders, the local

governments must show that they suffered prejudice from the orders, not merely

pages. When viewed in this context, the local governments’ position that the board “eviscerated the

public’s right to [provide] meaningful input” on the matter is unpersuasive.

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that the board violated one of its own rules or, as the local governments argue here,

a statute. See In re Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy

Co., 2014-Ohio-1532, ¶ 22 (observing that “[c]ase law is clear that an allegedly

aggrieved party must show that it suffered prejudice from a [board] order to warrant

reversal,” and rejecting the appellant’s argument that a violation of a “certification

statute[] causes inherent harm”). Our analysis of the local governments’ first five

propositions of law establishes that we have already considered whether the board’s

orders were decided on an incomplete application and caused prejudice to the local

governments. That analysis suffices for the purpose of the argument that the local

governments raise here.

{¶ 76} We accordingly reject the local governments’ sixth proposition of

law.

III. CONCLUSION

{¶ 77} The Ohio Power Siting Board’s orders are affirmed in part and

reversed in part, and we remand this matter to the board with instructions that it

more thoroughly address the Oak Run project’s visual impacts in accord with the

reasoning set forth herein analyzing the local governments’ second proposition of

law.

Orders affirmed in part

and reversed in part

and cause remanded.

__________________

KENNEDY, C.J., concurring in part and dissenting in part.

{¶ 78} I fully join the third opinion concurring in part in and dissenting in

part from the court’s judgment: I agree with the lead opinion’s decision requiring

appellee, the Ohio Power Siting Board, to obtain and review photographic

simulations or pictorial sketches of the major utility facility proposed by

intervening appellee, Oak Run Solar Project, L.L.C. However, Oak Run also failed

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to provide adequate information regarding local water quality, local plant and

wildlife, and the battery-energy-storage system (“BESS”) that would be built as

part of the project. I would find that appellants, the Board of Trustees for

Somerford Township, the Board of Trustees for Deercreek Township, the Board of

Trustees for Monroe Township, and the Madison County Board of Commissioners

(“the local governments”), were prejudiced by these failures and by the board’s

impermissible burden shifting. I write separately to emphasize how arbitrary and

unreasonable the lead opinion’s decision is.

{¶ 79} The board is a creature of statute. See R.C. 4906.02. Before it may

grant a certificate for the construction of a major utility facility, the board must

make specific findings based on information submitted by the applicant under

R.C. Ch. 4906 and the board’s associated rules. The burden of providing a

complete application to the board is on the applicant. See R.C. 4906.06(A).

{¶ 80} Oak Run did not satisfy its burden. It not only failed to provide the

board with photographic simulations or pictorial sketches of the proposed facility,

see lead opinion, ¶ 25, but it also failed to provide adequate water-quality studies,

see id. at ¶ 34, precise estimates of the quality and quantity of stormwater

discharges expected during construction of the facility, see id. at ¶ 40, literature

surveys regarding nonendangered species in the project area, see id. at ¶ 45, field

surveys of wildlife in the project area, see id. at ¶ 49, and an emergency-services-

and-response plan related to the BESS, see id. at ¶ 63.

{¶ 81} The water-quality and plant and wildlife data are necessary because

they provide important baseline information about the proposed-project area,

allowing the project’s effects to be adequately gauged. It is common sense that one

cannot measure a project’s environmental impacts, or adequately estimate its risks,

without a thorough understanding of the project area before construction begins.

Granting a construction certificate to Oak Run when it has failed to provide this

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information harms the local governments by making it impossible to assess the

project’s potential and actual environmental impacts.

{¶ 82} The local governments have also been prejudiced by Oak Run’s

incomplete emergency-services-and-response plan. Again, as the applicant, Oak

Run bears the burden of providing that information. See R.C. 4906.06(A). The

local governments need not “show that the BESS would not be properly maintained,

monitored, or secured,” as the lead opinion asserts, lead opinion at ¶ 62. While

“‘the board is not required to resolve every issue before issuing a certificate,’” id.

at ¶ 21, 64, quoting In re Application of Harvey Solar I, L.L.C., 2025-Ohio-1503,

¶ 24, leaving major features of a safety plan up in the air—like the identification of

a water source for preventing the spread of a lithium-ion-battery fire—is

unreasonable.

{¶ 83} These are not minute details that can be filled in later, nor are the

harms these omissions could cause easily rectified after the fact—in no small part

because without baseline data, the actual risks and ultimate toll of Oak Run’s

proposed project are hard to know. Oak Run neglected to provide entire surveys

and plans, not just a few stray details. Drawing the line at photographic simulations

and pictorial sketches, but not at water-quality studies, wildlife surveys, or fire-

safety plans, is arbitrary. The lead opinion lowers the bar that applicants seeking a

certificate to construct a major utility facility must clear, contrary to law. There is

a difference between allowing an applicant to “‘flesh out [the] details’” of a

proposed project in its final plan, id. at ¶ 21, quoting Harvey Solar at ¶ 25, and

allowing an applicant to escape its information-production burden.

{¶ 84} I would require Oak Run to satisfy its burden to produce to the board

information regarding baseline water-quality studies and local plant- and animal-

life surveys in the proposed-project area, as well as submit to the board a detailed

emergency-services-and-response plan. Because the court does otherwise, I concur

in part in and dissent in part from its judgment.

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__________________

BRUNNER, J., concurring in part and dissenting in part.

{¶ 85} I concur in the lead opinion with the exception of Part II(B). I would

find that appellee, the Ohio Power Siting Board, had before it adequate information

from which to determine the visual impacts of the proposed project. The record

contains sufficient depictions of intervening appellee Oak Run Solar Project,

L.L.C.’s proposed major utility facility from numerous public vantage points. I

therefore concur in part in and dissent in part from the court’s judgment and would

affirm the board’s orders granting Oak Run’s application for a certificate of

environmental compatibility and public need to construct a solar-powered electric-

generation facility.

I. Determining the visual impacts of the proposed solar project

{¶ 86} Appellants, the Board of Trustees for Somerford Township, the

Board of Trustees for Deercreek Township, the Board of Trustees for Monroe

Township, and the Madison County Board of Commissioners (collectively, “the

local governments”), oppose Oak Run’s proposed project. They argue that Oak

Run did not provide depictions of the project’s substations with its application and

allege that, as a result, the board did not have the necessary information concerning

the visual impacts of the project to make necessary, informed determinations

regarding whether the project represents the minimum adverse environmental

impacts under R.C. 4906.10(A)(3) and whether the project serves the public

interest, convenience, and necessity under R.C. 4906.10(A)(6).

{¶ 87} The fact that a particular component of the proposed project was not

specifically depicted in a visual format along with the depictions of other

components of the project that were submitted with Oak Run’s application does not

necessarily mean that the board did not have the information necessary to

adequately determine the project’s visual impacts. The visual depictions of a

proposed project as described in former Adm.Code 4906-4-08(D)(4)(e) that are to

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be submitted with an application for a construction certificate provide the board

preliminary information about the visual impacts of the proposed project. 2017-

2018 Ohio Monthly Record 2-998, 2-3002 (effective Apr. 26, 2018); see, e.g., In

re Application of S. Branch Solar, L.L.C., 2025-Ohio-5679, ¶ 27 (“A wildlife-

literature survey is a component of an application, but it is not the only information

the board receives about the potential ecological impacts of a project.”). Because

the final design of a project may change during the application process in response

to concerns voiced by local citizens about the project—for example, the exact size

of the solar panels that are ultimately used may not be finalized when the

application is filed, see In re Alamo Solar I, L.L.C., 2023-Ohio-3778, ¶ 34, or the

board may impose conditions requiring that certain design elements be used in the

construction of the project, see id. at ¶ 41—these visual depictions are informative,

but they are not determinative of nor do they limit board-approved changes to what

the project will look like once it is finally approved. See S. Branch Solar at ¶ 52.

{¶ 88} This is because the certification process is a “‘dynamic process,’” id.

at ¶ 11, quoting In re Application of Buckeye Wind, L.L.C., 2012-Ohio-878, ¶ 16

(lead opinion), one in which the board has the authority to require an applicant to

provide additional information or conduct additional studies, see R.C. 4906.03(A)

and (B). Furthermore, the board may waive requirements set forth in its own rules

that are not mandated by statute. See former Adm.Code 4906-4-01(B), 2015-2016

Ohio Monthly Record 2-1882, 2-1883 (effective Dec. 11, 2015). And even after

issuing a certificate for the construction of a major utility facility, the board retains

the authority to monitor the applicant’s compliance with any conditions that the

board imposed in granting the certificate and to ensure that the applicant continues

to take steps to adequately mitigate any potential negative impacts of the facility.

See S. Branch Solar at ¶ 11.

{¶ 89} Former Adm.Code 4906-4-08(D)(4)(e) required Oak Run to provide

with its application photographic simulations or artist’s pictorial sketches of the

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proposed facility from a range of public vantage points, with accompanying

explanations of the vantage points selected. The rule did not require Oak Run to

provide the board with depictions of every feature of the proposed project from

every possible public vantage point. Applying the rule to require this would result

in a laborious if not endless application process. The local governments argue that

the project’s substations, in particular, are “intrusive[] . . . looming structures,” so

it may be expected that the board would ask for some depictions of these structures

to help it assess the overall viewshed of the project.

{¶ 90} But it is too simplistic to equate the lack of any depictions of these

“looming” structures in Oak Run’s application to a failure of the board to consider

the potential negative impacts the substations would have on the viewshed in the

proposed-project area. It is a convenient misrepresentation of the record to assert

that the only depiction of the substations that the board considered was “a top-down

aerial photograph that appears to have been taken by a camera thousands of feet in

the air,” lead opinion, ¶ 30.

{¶ 91} Contrary to the lead opinion’s myopic view of the record, even a

cursory review of it plainly shows that the board could sufficiently determine the

visual impacts of the proposed project’s tallest structures. It is quite obvious that

any depiction of any unbuilt structure would provide only a general representation

of the visual impacts it would have on the area, not a definitive visual depiction of

every detail the structure would have once built. Whether the board should have

required Oak Run to submit additional visual depictions of the substations or certain

substation components before issuing a construction certificate is immaterial

because the local governments have not shown a realistic possibility that the board

would have reached a different conclusion but for that alleged error. Compare S.

Branch Solar, 2025-Ohio-5679, at ¶ 33 (finding that challenger to board’s approval

of construction certificate for a major utility facility failed to show how the board’s

decision resulted in harm to him), with In re Black Fork Wind Energy, L.L.C., 2018-

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Ohio-5206, ¶ 25 (finding harm when the appellants showed “a realistic possibility

of a different outcome but for the board’s error”).

II. The board’s determination regarding the visual impacts of the proposed

project was not unreasonable

A. Understanding the components of the proposed project’s substations

{¶ 92} Regarding the visual impacts of the proposed project, the local

governments are concerned primarily with the project’s three substations, each of

which would be as high as 115 feet at some points and would occupy approximately

15 to 18 acres. When Oak Run filed its application with photographic and pictorial

renditions of the project, the substations had not yet been designed. So it is fair to

question how the substations could alter the existing viewshed. As explained

below, the record evidence in this case plainly shows the potential visual impacts

the substations would have on the existing viewshed, even without their being

depicted in the visual simulations.

{¶ 93} For example, Oak Run’s application includes an aerial map of the

proposed project area depicting where the project’s substations would be located.

According to the application, underground cables would carry the electricity

generated from the solar panels to two substations located in the interior area of the

project. The electricity would then be carried from the substations using generation

tie-in (“gen-tie”) lines mounted approximately 120 feet above the ground on steel-

monopole structures. The two interior substations appear on the map as squares

with light-green diagonal lines, and they are shown as being surrounded by solar-

panel arrays, which are designated in red. The gen-tie lines will connect to a “step-

up” substation, which is shown on the map as a square with teal-green

crosshatching and is located at the entrance of the project area.

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{¶ 94} Each substation would contain a dead-end support structure3 and be

equipped with at least one lightning mast. These structures would be approximately

85 to 115 feet tall. The board’s staff explained in its report that the major

components of the two interior substations would include two transformers, circuit

breakers, surge arrestors, insulators, site-security fencing, control houses, and a

lightning mast. Staff explained that the step-up substation would have similar

components, including two additional transformers and a concrete barrier to

mitigate noise. The application indicates that the concrete barrier around the step-

up substation would be approximately 22 feet tall.

{¶ 95} Michael Ivy, a senior development engineer for the proposed project,

testified at the board’s hearing that the transformers that would be located at the

two interior substations could range in height from 15 to 20 feet. Even if Oak Run

were to use the largest solar panels considered for the project, the panels

themselves, depending on their angle, would be a maximum height of about 12 feet.

3. A description of this structure could not be located in the record.

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{¶ 96} Yet in finding that the board lacked the necessary information to

determine the visual impacts of the proposed project, the lead opinion does not

explain which components of the proposed project’s substations the board failed to

consider—the 15- to 20-foot transformers, the 85- to 115-foot lightning masts, the

dead-end support structures, the 22-foot concrete barrier, the solar panels (their size

or placement), or all of the above. Remanding this matter to the board to further

consider “evidence bearing on proper photographic simulations or an artist’s

pictorial sketches of the proposed substations,” lead opinion at ¶ 31, without

explaining what the substations actually consist of misses the mark. Understanding

the components of the project’s substations allows us to identify what may be

missing from the simulations and photographs that Oak Run already submitted, and

it renders remand unnecessary.

B. The board had sufficient evidence to consider the visual impacts of the

components of the proposed project’s substations

{¶ 97} Oak Run did not include with its application visual renditions of the

proposed project’s substations or their components, but it explained to the board

that those parts of the project would be minimally visible from public vantage

points, given their locations inside the solar-panel arrays and their distance from

neighboring residences. Oak Run argued in its reply brief filed with the board that

the step-up substation would be screened by trees and would be minimally visible,

if visible at all, from the vantage points identified in its application. Essentially,

even if Oak Run provides the board with depictions of the project’s substations and

their components, those parts of the project would be seen minimally, if at all, from

public vantage points.

{¶ 98} It is clear from the record that the board recognized this: in its

decision, the board specifically referred to the photographic simulations that Oak

Run submitted with its application and made the factual finding that at distances of

about 0.4 miles, the proposed project is “mostly absorbed into agricultural

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landscape,” 2024 WL 1465954, *72 (Mar. 21, 2024). It further found that the

project would “become less noticeable in views greater than one mile at which point

the individual modules [would] not be distinguishable and [would] appear

contained within the existing agricultural setting.” Id. The board cited numerous

parts of the record in support of its findings and concluded that

as a result of components incorporated into the Project design,

including vegetation, proposed Project structures, atmospheric

conditions, landscape and lighting plans and Oak Run’s provided

distance decay estimates and simulations, viewshed of the Project

should be mostly absorbed into the landscape.

Id. at *48. This conclusion was not derived from thin air or based only on the aerial

map that Oak Run submitted with its application, as the lead opinion irresponsibly

states, see lead opinion at ¶ 30; the facts supporting this conclusion are found in the

record.

{¶ 99} In its application, Oak Run included a visual-impact report prepared

by Stantec Consulting Services, Inc., that contains numerous pictures of the

proposed project from different public vantage points called key-observation points

(“KOPs),” such as the roads traveled in and around the project area. Because the

substation facilities had not yet been designed, that report focused mainly on the

visual effects of the solar modules and the gen-tie lines.

{¶ 100} Oak Run’s senior development engineer, Ivy, explained to the

board at its hearing that some figures in the report show the proposed project site

as it currently looks and others contain simulations of the solar-panel arrays and

other aspects of the project. For example, Figure 6a shows the western view of the

project site as it currently appears from a nearby roadside identified as KOP 2:

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{¶ 101} The next figure in the report, Figure 6b, depicts the same area but

includes a simulation of the solar-panel arrays that would be used in the proposed

project; the simulation shows that solar-panel arrays would be set less than 0.1 mile

away from KOP 2:

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Figure 6b does not show the fencing or vegetative screening that Oak Run agreed

to use to minimize views of the project. As the caption explains, Figure 6b also

depicts part of a gen-tie line, which would be located about one mile away from

KOP 2, making it barely visible above the tree line in the left-side background of

the image. Recall that the proposed gen-tie lines would be mounted approximately

120 feet above the ground and the proposed lightning masts and dead-end support

structures, which are not depicted in Figure 6b, would not exceed 115 feet tall.

{¶ 102} Figure 8b in the report shows a simulation of the gen-tie lines from

along the northbound lane of a public highway identified as KOP 4. The caption

under Figure 8b states that the step-up substation would be located beyond the

clustered vegetation seen in the background:

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{¶ 103} The caption further explains that the connection from the gen-tie

lines to the step-up substation is not depicted, because that connection would

depend on the substation’s ultimate design. However, based on the record

evidence, no component of the substation would exceed the height of the gen-tie-

line poles that are depicted in Figure 8b. And because the components of the step-

up substation would be beyond the tree line shown in Figure 8b, they would be

minimally visible, if visible at all, from KOP 4.

{¶ 104} The local governments argue that the proposed project’s

substations are “intrusive[] . . . looming structures.” But even the tallest

components of the substations are no taller than the gen-tie line shown in Figure

6b, which is barely visible. And the step-up substation components would appear

just beyond the tree line shown in the background in Figure 8b—hardly as looming

as the gen-tie lines simulated in the foreground of that figure. The local

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governments have not explained how these simulations would change if the missing

substation components were included in the depiction. The local governments are

not entitled to reversal of the board’s orders, even if under its own rules the board

should have required Oak Run to submit additional depictions of the project area.

See S. Branch Solar, 2025-Ohio-5679, at ¶ 33, quoting In re Application of Ohio

Power Co., 2018-Ohio-4698, ¶ 50 (“This court ‘will not reverse a [board] order

based on speculation.’” [Bracketed text in original.]).

III. The board’s orders should be affirmed

{¶ 105} Oak Run is not required to ensure that the proposed project is

completely shielded from neighbors’ or the public’s view. See id. at ¶ 43 (finding

that the applicant was “not required to ensure that the solar panels [of its project]

would be invisible or completely screened off from a neighbor’s property”). The

board had adequate depictions and explanations of the facilities that would be built

as part of the project to properly determine that the visual impacts of the project

would be minimal.

{¶ 106} The record shows that most of the substation components would be

shielded from view by vegetation and therefore would not be visible even in a

photographic simulation or pictorial sketch. And the local governments have not

offered any evidence to show how the substation components might actually appear

in any photographic simulations or pictorial sketches to establish that the board’s

determination would have been different but for the omitted components.

{¶ 107} The board is entitled to make reasonable inferences so long as the

record contains probative evidence to support those inferences, see S. Branch Solar,

2025-Ohio-5679, at ¶ 18, and such evidence is present here. This court’s remand

is an unnecessary act of micromanagement that has the appearance of

oversensitivity to local political concerns and that ignores the record evidence on

which the board plainly based its decision. Because the board’s decision was

adequately supported by the record, see id., this court should affirm the board’s

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orders granting a certificate of environmental compatibility and public need to Oak

Run. I therefore cannot join Part II(B) of the lead opinion. I thus concur in part in

and dissent in part from the court’s judgment and would affirm the board’s orders.

__________________

HAWKINS, J., joined by KENNEDY, C.J., and SHANAHAN, J., concurring

in part and dissenting in part.

{¶ 108} The lead opinion today concludes that this case must be remanded

to appellee, the Ohio Power Siting Board, for further proceedings because

intervening appellee, Oak Run Solar Project, L.L.C., failed to provide adequate

visual simulations or sketches of its proposed project from public vantage points

when it submitted its application for a certificate to construct a major utility facility.

See lead opinion, ¶ 2. With that I agree. I also agree with the lead opinion’s

conclusion that Oak Run has otherwise taken steps to minimize the adverse visual

impacts of the project, see id. at ¶ 16-22.

{¶ 109} I cannot, however, join in the lead opinion’s conclusion that even

though Oak Run failed to satisfy the water-quality-study and wildlife-survey

requirements of the Ohio Administrative Code when it submitted its application to

the board, appellants, the Board of Trustees for Somerford Township, the Board of

Trustees for Deercreek Township, the Board of Trustees for Monroe Township, and

the Madison County Board of Commissioners (collectively, “the local

governments”), have failed to show that they have been prejudiced by that failure.

Moreover, I disagree with the lead opinion’s conclusion that the board has

accounted for safety concerns related to the on-site battery-energy storage system

(“BESS”) and the lead opinion’s conclusion that the board did not shift to the local

governments the burden that Oak Run was required by statute to satisfy.

Accordingly, I concur in part in and dissent in part from the court’s judgment.

{¶ 110} Under R.C. 4906.10(A), the board is prohibited from “grant[ing] a

certificate for the construction, operation, and maintenance of a major utility

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facility” unless it finds that all the factors enumerated in R.C. 4906.10(A)(1)

through (8) have been satisfied. Similarly, the applicant must submit an application

that “conform[s] to the requirements of Chapters 4906-4 through 4906-6 of the

Administrative Code.” Former Adm.Code 4906-2-04(B), 2015-2016 Ohio

Monthly Record 2-1859 (effective Dec. 11, 2015). The law places the burden on

the applicant to show that it has satisfied the statutory and administrative-rule

requirements. See R.C. 4906.06(A). The lead opinion today accepts that Oak Run

has failed to carry this burden. See lead opinion at ¶ 34, 45, 49. I agree.

{¶ 111} But the lead opinion then concludes that the local governments

have not shown that they have been prejudiced by the board’s decision to approve

Oak Run’s application—an application that does not satisfy the requirements set

forth in the Administrative Code. See id. at ¶ 2. To be sure, our case law recognizes

that this court will not reverse the board’s order “unless the party seeking reversal

shows that it has been or will be harmed or prejudiced by the order,” In re

Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy Co., 2014-Ohio-

1532, ¶ 19. That is, the appellant—here, the local governments—must show that it

has been or will be “meaningfully affected” by the error, In re Application of

Champaign Wind, L.L.C., 2016-Ohio-1513, ¶ 15.

Water-quality studies

{¶ 112} Former Adm.Code 4906-4-07(C)(1)(d) required Oak Run to

demonstrate the water-quality baseline of any receiving stream by providing “at

least one year of monitoring data, using appropriate Ohio environmental protection

agency reporting requirements.” 2015-2016 Ohio Monthly Record 2-1886, 2-1887

(effective Dec. 11, 2015). Former Adm.Code 4906-4-07(C)(2)(b), in turn, required

Oak Run to “[p]rovide an estimate of the quality and quantity of aquatic discharges

from the site clearing and construction operations.” Id. Though the lead opinion

recognizes that Oak Run failed to satisfy former Adm.Code 4906-4-07(C)(1)(d)’s

requirements, see lead opinion at ¶ 34, it dismisses the local governments’ concerns

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about the proposed project’s impact on local water quality as speculative, and it

analogizes this case to this court’s decision in In re Application of Harvey Solar I,

L.L.C., 2025-Ohio-1503, see lead opinion at ¶ 39.

{¶ 113} In Harvey Solar, this court held that an applicant’s failure to

comply with the water-quality provisions of the Administrative Code when seeking

a construction certificate was excusable because the applicant indicated in its

application that “its project [would] not generate any water-related discharges or

wastewater” and the project’s opponents “did not submit any evidence to prove

otherwise.” Harvey Solar at ¶ 49; see also In re Application of Alamo Solar I,

L.L.C., 2023-Ohio-3778, ¶ 63 (failure to comply with water-quality provisions of

Administrative Code deemed excusable because applicant averred that “the

projects [would] not create any water-related discharges or wastewater and there

[would] be no streams receiving runoff”).

{¶ 114} In my view, though, the local governments have shown that water-

related discharges will occur with Oak Run’s proposed project, and they have

shown that they will be meaningfully affected by the absence of baseline water-

quality measurements. The Oak Run project calls for the grading of approximately

500 acres of agricultural land. A senior development engineer for Oak Run testified

that the construction work can carry eroded soil into nearby streams, and Oak Run

explicitly noted in its application that while no point-source water discharges are

likely to occur, stormwater discharges are expected. Other evidence shows that

most of the project area drains immediately downstream into the Big Darby Creek

watershed and that that watershed is at risk of losing many of its indigenous species

if excess soil makes its way into the water. Perhaps in view of this probability, Oak

Run stated in its application its intent to create a stormwater-pollution-prevention

plan (“SWPPP”) to mitigate stormwater discharges. Without the rule-required

water-quality measurements that should have been submitted by Oak Run with its

application, however, the local governments will be unable, except at taxpayer cost,

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to gauge the efficacy of the SWPPP and discern whether Oak Run’s construction

activities are harmful to the community’s downstream water supply. Indeed, the

lead opinion acknowledges that “knowing the preexisting water quality of nearby

steams is necessary to determine” the impact of the project on nearby water sources.

See lead opinion at ¶ 35.

{¶ 115} It is simply wishful thinking—in favor of the party with the

statutory burden—to conclude that despite anticipated stormwater discharges from

500 acres of graded land, the local governments can point to no evidence that

meaningful runoff will occur. See id. If Oak Run believed that water-quality

measurements were irrelevant to its proposed project and therefore did not need to

be submitted with its application for a construction certificate, it was required to

request advance permission from the board to omit that information from its

application. See former Adm.Code 4906-4-01(B), 2015-2016 Ohio Monthly

Record 2-1882, 2-1883 (effective Dec. 11, 2015). It neither requested nor obtained

that permission, and the local governments are now left in the dark about the

potential harm the project may pose to local water sources and the wildlife that use

those sources. Those failures by Oak Run meaningfully affect the local

governments.

{¶ 116} I also fail to see how the lead opinion can find that the local

governments have been prejudiced by Oak Run’s failure to provide the requisite

photographic simulations with its application, see lead opinion at ¶ 31, but not make

the same finding regarding the absence of baseline water-quality studies. The lead

opinion today reverses the board’s decision with regard to the local governments’

second proposition of law. Id. That reversal is warranted, the lead opinion

explains, because Oak Run failed to satisfy the requirements of former Adm.Code

4906-4-08(D)(4)(e), 2017-2018 Ohio Monthly Record 2-998, 2-3002 (effective

Apr. 26, 2018), so the board was unable to make an informed decision about the

visual impacts of the proposed project. See lead opinion at ¶ 31. That reasoning is

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conspicuously absent from the lead opinion’s analysis of the remaining

propositions of law. If Oak Run’s failure to satisfy the requirements of former

Adm.Code 4906-4-08(D)(4)(e) prevented the board from making an informed

decision about the visual impacts of the project, then so too did Oak Run’s failure

to satisfy the requirements of former Adm.Code 4906-4-07(C)(1)(d) and (C)(2)(b)

prevent the board from making an informed decision about the project’s potential

effects on local water quality.

Wildlife surveys

{¶ 117} Former Adm.Code 4906-4-08(B)(1)(c) required Oak Run to

“[p]rovide the results of a literature survey of the plant and animal life within at

least one-fourth mile of the project area boundary,” including both plant and animal

species that are “designated as endangered or threatened,” as well as plant and

animal species that “are of commercial or recreational value.” 2017-2018 Ohio

Monthly Record at 2-3000. In line with the lead opinion, I refer to endangered or

threatened species as listed species and to species of commercial or recreational

value as nonlisted or unlisted species. See lead opinion at ¶ 44-45. Former

Adm.Code 4906-4-08(B)(1)(d) then required Oak Run to “[c]onduct and provide

the results of field surveys of the plant and animal species identified in the literature

survey.” 2017-2018 Ohio Monthly Record at 2-3000.

{¶ 118} The lead opinion believes that even though Oak Run never

performed a literature survey for nonlisted animals, Oak Run nevertheless provided

the information required by the administrative rule because “other information in

the record touches on the project’s potential effects on unlisted species,” lead

opinion at ¶ 45. It points to the testimony of an environmental consultant for Oak

Run who testified that the proposed project was “not anticipated to result in impacts

to non-listed wildlife.”

{¶ 119} That flimsy statement cannot carry Oak Run’s burden. I fail to see

how Oak Run could say that the proposed project would not impact unlisted

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wildlife, given that it never studied what types of unlisted wildlife could be present

within a quarter mile of the project’s boundary. Moreover, it is clear that the

testimony presented by Oak Run’s consultant is based on conjecture alone and is

limited to narrow circumstances involving only certain aquatic birds and flightless

mammals. That is concerning, given that the literature survey that Oak Run did

conduct identified numerous species of bats, fish, and mussels—all animals outside

the scope of the witness’s speculative testimony. That literature survey identified

25 listed species within the project area. It appears exceedingly likely, then, that

the number of nonlisted species within the project area would far exceed 25.

Indeed, testimony before the board highlighted the presence of red-tailed hawks,

deer, coyotes, skunks, and racoons in the area surrounding the property. The lead

opinion and the board’s rote deference to Oak Run on this aspect of Oak Run’s

application precludes any serious inquiry into the potential impacts the project

would have on nonlisted wildlife—an inquiry that is required under former

Adm.Code 4906-4-08(B)(1)(c).

{¶ 120} Worse still is the lead opinion’s treatment of Oak Run’s field

survey. Though the literature survey identified 25 listed species of birds, fish, bats,

and mussels in the proposed project area, Oak Run’s field survey consisted of a

search for only endangered or threatened bat species. That means that Oak Run

surveyed only four out of the 25 species identified in the literature survey and that

it did not survey any of the nonlisted species since it failed to research any nonlisted

animal species in the project’s boundary area. The lead opinion again concludes,

though, that this is fine because Oak Run’s environmental consultant testified that

the project was not expected to result in significant impacts to nonlisted wildlife.

See lead opinion at ¶ 49. The law, however, required Oak Run to conduct and

provide with its application the results of literature and field surveys, not mere

speculation about whether the project was anticipated to impact nonlisted animals.

The local governments, meanwhile, will be unable—without themselves

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conducting the studies that Oak Run was required by law to conduct—to gauge the

impact that the 6,050-acre facility will have on local wildlife. That, too,

meaningfully affects the local governments.

{¶ 121} I also must reiterate that the reasoning that the lead opinion

employs in its analysis of the local governments’ second proposition of law applies

here. So if, as the lead opinion concludes, Oak Run’s failure to satisfy the

requirements of former Adm.Code 4906-4-08(D)(4)(e) prevented the board from

making an informed decision regarding the visual impacts of the proposed project,

then Oak Run’s failure to satisfy the requirements of former Adm.Code 4906-4-

08(B)(1)(c) and 4906-4-08(B)(1)(d) likewise prevented the board from making an

informed decision about the potential impacts the project would have on local

wildlife. In an effort to excuse its inconsistent application of the Administrative

Code, the lead opinion assumes that “there would likely be minimal impact on local

water quality and plants and wildlife with construction of the project,” lead opinion

at ¶ 52. Without the rule-required baseline information, however, I view this fragile

claim as little more than a tenuous assumption.

Battery-energy storage systems

{¶ 122} Oak Run will house a BESS consisting of 328 large battery

containers on approximately 11 acres of the proposed project site. The BESS is

expected to use lithium-ion-battery technology, which poses a significant threat to

the environment in the event of a fire. Evidence before the board showed that if

the BESS catches fire, it cannot be extinguished; it must instead burn continuously

until its fuel source is spent. To protect the surrounding area during a lithium-ion-

battery fire, firefighters must set up a defensive perimeter around the fire and use

water to prevent it from spreading. While a lithium-ion-battery fire burns, though,

it releases hydrogen-fluoride gas into the atmosphere, which—when combined with

ambient moisture—becomes hydrofluoric acid, a highly corrosive liquid and

contact poison. A witness for Oak Run highlighted multiple instances of lithium-

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ion-battery fires involving the Tesla Megapack, which is the battery tentatively

selected for use in the BESS.

{¶ 123} In its application, Oak Run did not present a plan to address the

risks posed by the BESS. It instead promised to provide an emergency-response

plan to the board at some later date, and it claimed that it would comply with certain

fire codes, inquire with local firefighters about the availability of water supplies,

and provide firefighting equipment and training to those local firefighters. The

board approved Oak Run’s application on the condition that Oak Run follow

through with these promises. See 2024 WL 1465954, *55, 74, 82 (Mar. 21, 2024).

The lead opinion today acknowledges that no developed fire-safety plans are in

place for the proposed project, but it concludes that reversal of the board’s decision

approving Oak Run’s application for a construction certificate is unwarranted on

this issue because the board can monitor Oak Run’s compliance with the imposed

fire-safety conditions throughout the construction process. See lead opinion at ¶ 64.

This, in my view, is a mistake.

{¶ 124} To be sure, this court has recognized “that the board is not required

to resolve every issue before issuing a [construction] certificate,” Harvey Solar,

2025-Ohio-1503, at ¶ 24; see also Alamo Solar, 2023-Ohio-3778, at ¶ 41. But I

find application of that general practice to be a poor fit in this particular case.

Unlike our recent invocation of that practice in the adverse-visual-impact context

in Harvey Solar and Alamo Solar, see Harvey Solar at ¶ 18-25; Alamo Solar at

¶ 36-41, the BESS in this case poses an immediate threat to the health and safety of

members of the local communities. Oak Run’s plans to address the risks, however,

are speculative at best. Oak Run acknowledges that it has not identified a water

source capable of containing the spread of an 11-acre lithium-ion-battery fire. Oak

Run’s promises also contain no indication that the public would be protected from

the chemicals that would be released into the environment during a battery fire.

The toxic chemicals released during such fires are known to cause gastrointestinal,

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cardiovascular, endocrine, and neurological diseases. Moreover, there is no

indication that the local firefighters (to whom the inflated fire-fighting

responsibilities will now fall) would be capable—even with equipment and training

provided by Oak Run—of containing such a colossal fire. Until the fire-safety

plans are more fully developed, the local governments will be unable to determine

whether their communities will be safe from the potential harm of a battery fire.

{¶ 125} Environmental harms, once caused, are less easily mended than

fences and shrubs. We should not allow the board to avoid its responsibility of

resolving this particular issue in this case. See In re Application of Buckeye Wind,

L.L.C., 2012-Ohio-878, ¶ 53 (Lundberg Stratton, J., dissenting) (“Issues are not to

be settled after construction is approved, much less by unaccountable staff

members without public scrutiny or judicial review.” [Emphasis in original.]).

Burden shifting

{¶ 126} The aforementioned defects in Oak Run’s application share in

common an absence of meaningful oversight from the board. To obtain approval

of its application, Oak Run was required to submit a complete application to the

chairperson of the board. See R.C. 4906.06(A). Oak Run did not do that. The

chairperson was then required to examine the application to determine whether it

complied with Chapters 4906-1 to 4906-7 of the Administrative Code, and within

60 days of receipt, he or she was required to reject the application if it was

incomplete. Former Adm.Code 4906-3-06(A), 2015-2016 Ohio Monthly Record

2-1877 (effective Dec. 11, 2015). The chairperson did not do that. Instead, the

chairperson accepted Oak Run’s “application as complete,” former Adm.Code

4906-3-06(A)(1), 2015-2016 Ohio Monthly Record at 2-1877, and forwarded the

application to the board’s staff for review—though not without indicating that staff

“[could] request additional information to ensure [s]taff [could] continue to conduct

its review of the application.” The local governments filed with the board a motion

for an order directing Oak Run to supplement its application with the missing

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information, but their request was flatly denied by an administrative-law judge. In

affirming that administrative-law judge’s holding, the board noted that the local

governments “had an opportunity to request” the missing information “during

discovery” and that the local governments could have raised their concerns “with

expert witnesses during the evidentiary hearing,” 2024 WL 1465954 at *37.

{¶ 127} Expecting the local governments to obtain by discovery and expert-

witness testimony the information that Oak Run was required by statute to include

in its application amounts to burden shifting. We must give effect to the words of

a statute, see, e.g., State v. Beatty, 2024-Ohio-5684, ¶ 8, and the statute here places

the burden on Oak Run to submit a complete application, see R.C. 4906.06(A); see

also former Adm.Code 4906-2-04(B), 2015-2016 Ohio Monthly Record at 2-1859.

The lead opinion’s assertion that the local governments “have not identified a

guiding principle to assist us in determining when an administrative agency has

flipped the burden of proof from an applicant to an intervenor,” lead opinion at

¶ 72, rings hollow given the burden-setting mandates of the Revised Code and the

Administrative Code. Moreover, it would be impossible for the local governments

to obtain the missing information in discovery because that information—water-

quality studies, wildlife surveys, and a developed fire-safety plan—do not exist

until they are obtained by Oak Run. Nor could the local governments be expected

to obtain the missing information by conducting the research themselves because

Oak Run is the only party with access to the proposed project site to perform the

studies that the law requires.

{¶ 128} As explained above, we have recognized that “the board is not

required to resolve every issue before issuing a [construction] certificate,” Harvey

Solar, 2025-Ohio-1503, at ¶ 24; see also Alamo Solar, 2023-Ohio-3778, at ¶ 41.

This court has invoked this reasoning, though, in connection with R.C. 4906.10(A),

which allows the board to conditionally approve an otherwise incomplete

application, thus allowing an applicant to “flesh out the details” of some aspects of

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a project “as the construction process evolves,” Alamo Solar at ¶ 41. But there is

no indication here that the board conditioned its approval of Oak Run’s application

on Oak Run’s eventual compliance with the water-quality-study and wildlife-

survey provisions of the Administrative Code. Moreover, as explained above, I

find the application of this practice to be a poor fit in this particular case.

{¶ 129} Oak Run is in the best position to understand the environmental

harm that its proposed project poses to the local communities, which is why Ohio

law places the burden on Oak Run to submit an application that satisfies the

requirements of the Administrative Code. Expecting the local governments, at

taxpayer expense, to obtain the information that Oak Run was supposed to provide

with its application is the wrong precedent to set.

Conclusion

{¶ 130} There is no disputing the fact that Ohio’s energy needs are growing

by the day. The General Assembly has authorized the construction of commercial

solar farms as one way to address these needs and has given the board the authority

under R.C. 4906.10 to approve or disapprove applications for the construction of

such facilities—an often unenviable task given the frequent objections of local

residents who reside near a particular project area. Though local residents have no

power to “veto” the board’s approval of an application for a certificate to construct

a large-scale major utility facility, they have the right to ask questions of the board

to ensure their safety and quality of life are not compromised. And they have the

right to expect that the board will follow the law when deciding whether to approve

an application, particularly when a project as large and unprecedented as Oak Run’s

is being considered for construction in their backyard.

{¶ 131} Here, in its quest to build the nation’s largest and first-of-its-kind

utility-scale solar “agrivoltaics” program in Madison County, Oak Run submitted

an application that the board—both when the application was filed and throughout

these proceedings—acknowledged was incomplete under the Administrative Code.

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Oak Run’s “we’ll get that information to you later” approach, and the board’s

acquiescence to it, might be understandable when it comes to the number of trees

that will be planted or what color the facility will be painted.

{¶ 132} But when the local governments ask, “Will our water be polluted?”

or “Will local wildlife be destroyed?” or “Will our properties be safe from fire?”

the board’s response amounts to either “We’ll figure that out later” or “Oak Run

promises it’ll be ok.” These answers not only ignore the requirements set forth in

the Administrative Code, they dismiss the real concerns of the local governments

and leave the citizens of Madison County to question whether such concerns would

have been left unanswered had Oak Run proposed such a project in Columbus.

{¶ 133} Though I concur in the court’s judgment remanding this case to the

Power Siting Board for additional proceedings, I would also order Oak Run to

supplement its application with the missing information before the board conducts

a new hearing. Accordingly, I concur in part and dissent in part.

__________________

Van Kley Law, L.L.C., and Jack A. Van Kley, for appellants.

Dave Yost, Ohio Attorney General, and John Jones and Ambrosia E.

Wilson, Assistant Attorneys General, for appellee.

Dickinson Wright, P.L.L.C., Christine M.T. Pirik, Jonathan R. Secrest,

David A. Lockshaw Jr., Terrence O’Donnell, and Matthew C. McDonnell, for

intervening appellee.

Hubay Dougherty and Trent Dougherty; and Sabin Center for Climate

Change Law, Columbia Law School, and Matthew Eisenson, urging affirmance for

amicus curiae Dr. John Boeckl.

Chris Tavenor and Karin Nordstrom, urging affirmance for amicus curiae

Ohio Environmental Council.

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Flannery Georgalis, L.L.C., W. Benjamin Reese, and Matthew L. Jalandoni,

urging affirmance for amici curiae Ohio Chamber of Commerce and Ohio Business

Roundtable.

__________________

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