Following an original application made in February 2017 that was supplemented at least five times and an at times contentious docket involving several joint stipulations and settlements, on May 21, 2020, Icebreaker Wind1 received a key opinion and order from the Ohio Power Siting Board (OPSB) approving the application and directing that a certificate be issued to Icebreaker Wind for construction of a new 20.7 megawatt wind-powered electric generation facility.
However, in the related press release,2 Icebreaker Wind states:
[The OPSB] order is not an approval. A condition added by the Ohio Power Siting Board (OPSB) may well be fatal to the entire project. We are extremely disappointed the Board took this unfortunate step backward for clean energy in Ohio.
We are stunned by the OPSB Order today that, although they approved construction of Icebreaker Wind, added a significant condition that reneges on the agreement reached with OPSB Staff last May. Throughout the OPSB proceedings in this case, we made it abundantly clear that a requirement to shut down the turbines from dusk to dawn for the majority of the year renders the project economically not viable.
Given the prior agreement signed off on by the Attorneys General representing the OPSB and ODNR, we were extremely surprised by their directive and learned of it only in the press release the OPSB issued immediately following the meeting today.
We have been fully transparent with the OPSB Staff that this requirement makes the project economically unworkable and unrealistic, and they ultimately agreed and signed on to the Joint Stipulation in May 2019. Taken in full context of the entire Joint Stipulation, the OPSB Staff, with concurrence from ODNR, found that Icebreaker, subject to the conditions of the Joint Stipulation, represented the minimum adverse environmental impact.
LEEDCo has invested incredible amounts of time and money into studying and assessing potential impact to birds and bats. We have not taken it lightly. Consider just the following:
- The U.S. Department of Energy ruled – after an intensive two-year study – that Icebreaker will have no significant impact on the environment.
- Icebreaker has been endorsed by environmental groups, including the Sierra Club, the Environmental Defense Fund and the Ohio Environmental Council.
- Icebreaker has earned approvals from regulatory agencies including the Ohio Environmental Protection Agency, the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service. The project had been thoroughly reviewed for many years under the strictest of environmental regulations and reviews by 13 local, state and federal agencies.
In light of today’s decision, LEEDCo will need to reconvene in the coming days and examine our options on how and whether we can move forward.”
The OPSB opinion and order includes a discussion of the contentious condition and notes (at p.78):
[W]e find it appropriate to condition the certificate, consistent with what the Applicant agreed to in the Fifth Supplement to the application filed on May 14, 2019, but modified as follows, so that the turbines remain completely feathered during nighttime hours, from dusk to dawn, from March 1 through November 1 of each year of operation, until or unless the Board directs otherwise. Rather than requiring nighttime feathering for ten months of the year, this additional condition being adopted by the Board will only require feathering for eight months of the year, thus permitting the Applicant to operate four consecutive months of the year or one calendar quarter without the nighttime feathering requirement. Given the novel nature of this project, we believe the more appropriate course is to limit operations during the periods where there is a heightened risk for bird and bat collisions, without waiting for a potential issue with the technology to occur [citations omitted]. This condition would only be in place until additional information regarding monitoring is on the record, as discussed below. We acknowledge that the primary purpose of this project is to gather data about the impacts of offshore wind facilities, with a greater goal of assessing the viability [of] other, larger potential offshore wind projects in the Great Lakes region. We find these additional precautionary measures are necessary from the beginning for such an unprecedented project and can be appropriately adjusted as more information is accumulated.
The lack of any accepted method for determining avian and bat mortality for offshore wind, exacerbated by the project’s location in known avian migratory pathways, has been a key issue for the Icebreaker Wind project from inception.
1 For our earlier Perspectives regarding Icebreaker Wind and its Lake Erie project, see: https://www.mayerbrown.com/en/perspectives-events/publications/2019/03/in-another-milestone-icebreaker-wind-receives--key-construction-permit, https://www.mayerbrown.com/en/perspectives-events/publications/2018/10/in-major-step-forward-icebreaker-wind-receives-a-f and https://www.mayerbrown.com/en/perspectives-events/publications/2018/07/great-lakes-offshore-wind-icebreaker-project-condi.
2 Available at http://www.leedco.org/files/IcebreakerOPSBStatement.pdf.