# In re Application of Buckeye Wind, L.L.C.

> Ohio Supreme Court · March 6, 2012 · 131 Ohio St. 3d 449

URL: https://www.frixlaw.com/law-library/cases/9801666

## Case

- **Full name:** In Re Application of Buckeye Wind, L.L.C., for a Certificate to Construct Wind-Powered Electric Generation Facilities in Champaign County, Ohio; Union Neighbors United Et Al., Appellants; Power Siting Board Et Al., Appellees
- **Court:** Ohio Supreme Court
- **Decided:** March 6, 2012
- **Citations:** 131 Ohio St. 3d 449; 2012 Ohio 878
- **Precedential status:** Published
- **Opinion:** Dissent by Pfeifer
- **Judges:** Lanzinger, O'Connor, Brown, O'Donnell, Pfeifer, Stratton, Cupp
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Pfeifer, J.,
dissenting.
{¶ 38} “111 blows the wind that profits nobody.” William Shakespeare, Henry VI, Part III, Act II, Scene 5.
{¶ 39} I join Justice Stratton’s dissent. I further dissent because I would hold in favor of appellants Champaign County and Goshen, Salem, and Union Townships on the decision of the Ohio Power Siting Board (“OPSB”) regarding bonding to cover the cost of removing decommissioned windmills.
{¶ 40} How many windmills does it take to power a light bulb? As many as the government will subsidize. It may not be geographically preposterous to build windmills in Ohio — not like building a solar energy farm in Upper San-dusky — since we do have wind. But for how long will government be willing to subsidize a form of energy production that is uneconomical and undependable? The mechanical obsolescence of windmills is one matter of concern; that is, what will become of these whopping, white whirligigs when they become technologically outmoded even in comparison to other windmills?
{¶ 41} But there is a bigger concern. The winds that really power alternative-energy projects like these, political winds, are also subject to change, sometimes abrupt change. From a recent article in the Chicago Tribune:
The wind power industry is predicting massive layoffs and stalled or abandoned projects after a deal to renew a tax credit failed Thursday in Washington.
The move is expected to have major ramifications in states such as Illinois, where 13,892 megawatts of planned wind projects — enough to power 3.3 million homes per year — are seeking to be connected to the electric grid. Many of those projects will be abandoned or significantly delayed without federal subsidies.
*460 Chicago Tribune, End of Tax Credit a Blow for Wind Power Industry, http:// www.chicagotribune.conVbusiness/ct-biz-0217-wind-ptc-20120217,0,7153601. story?page=l (accessed Feb. 17, 2012).
{¶42} When windmill welfare ends, the companies that build windmills, dependent as they are on government largesse and regulation, will disappear. Then what? Ohio’s public utilities do not own the windmills — they are just forced to purchase the power generated from them — and will thus be under no obligation to decommission them. Windmills will become relics, 492-foot-tall white elephants, monuments to our quixotic quest for alternative energy. One such monument would do the trick; 70 are too many for Champaign County.
{¶ 43} Granted, in this case we are dealing with the amount of a bond to cover the period from the commencement of construction of the windmills through the first year. The OPSB set that bond at $5,000 per turbine, despite the fact that the board heard testimony from appellants’ expert that decommissioning could cost as much as $300,000 per turbine. But Buckeye Wind’s witness testified that it is “inconceivable” that the project will need to be decommissioned within the first five years. He uses that word “inconceivable,” but I do not think it means what he thinks it means. The technology behind the windmills might prove untouchable for five years, but it is entirely conceivable that the bottom could drop out of the market for wind power or that Buckeye Wind could fail as a company. It would not be the first alternative-energy concern to turn off its lights. The question is not whether the turbines work, it’s whether the economics work. The answer to our energy future is likely not blowing in the wind.
{¶ 44} It is incumbent on the OPSB to insist that there is reasonable protection for the decommissioning of windmills, whenever that decommissioning might occur. There was no evidence presented at the hearing that the $5,000 per turbine required by the OPSB is adequate in any way to actually bring down a windmill. No witness testified that that nominal amount was sufficient to protect the public interest if the windmills were abandoned.
{¶ 45} And the public most certainly has an interest that needs protection. The interest does not lie just with the homeowners who thought they were buying a little piece of rural heaven in Champaign County and now have their pristine views obscured. The public at large has an interest because, ultimately, the state could be left to deal with the aftermath of a failed experiment.
{¶ 46} I suspect that this latest generation of windmills will go the way of the leisure suit: fashionable for a time, but ultimately causing us to say, “What were we thinking?” But there’s no Goodwill store in the world big enough to take them off our hands.
Lundberg Stratton, J., concurs in the foregoing opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9801666. Public record. Not legal advice.