Clarifying Environmental and Economic Evidence Standards for Ohio Solar Siting Certificates: Commentary on In re Application of S. Branch Solar, L.L.C.

Clarifying Environmental and Economic Evidence Standards for Ohio Solar Siting Certificates: Commentary on In re Application of S. Branch Solar, L.L.C., 2025‑Ohio‑5679

I. Introduction

The Supreme Court of Ohio’s decision in In re Application of S. Branch Solar, L.L.C., 2025‑Ohio‑5679, is a significant addition to the state’s growing body of case law on the siting of large renewable‑energy facilities. The court affirmed an order of the Ohio Power Siting Board (“OPSB” or “the board”) granting South Branch Solar, L.L.C. a certificate of environmental compatibility and public need to construct a 130‑MW solar facility in Hancock County.

The case sits at the crossroads of state energy policy, local land‑use concerns, and administrative law. It addresses:

  • What constitutes adequate information on wildlife, flooding, and economic impacts under the board’s rules;
  • How the OPSB must evaluate “probable environmental impact,” “minimum adverse environmental impact,” and “public interest, convenience, and necessity” under R.C. 4906.10(A)(2), (3), and (6);
  • How much weight local opposition and public comments carry in the public‑interest analysis;
  • What an “estimate” of economic impact must include under former Ohio Adm.Code 4906‑4‑06(E)(4); and
  • What level of explanation is required from the OPSB under R.C. 4903.09.

Appellant Travis Bohn, a nearby resident, argued that the OPSB misapplied its statutory criteria and rules, relied on incomplete or one‑sided information, and inadequately analyzed impacts on wildlife, stormwater and drainage, local aesthetics, and the local economy. The court rejected those claims, reinforcing a deferential standard of review and clarifying what is—and is not—required of applicants and the OPSB when certifying large solar facilities.

II. Summary of the Opinion

A. Factual and Procedural Background

  • South Branch Solar applied in July 2021 for a certificate to build a roughly 130‑MW solar‑powered generation facility on about 700 acres of primarily agricultural land in Washington Township, Hancock County.
  • The project includes solar panels, racking systems, access roads, collection lines, inverters, transformers, meteorological stations, an operations building, and a substation.
  • The OPSB chair found the application complete; staff conducted an investigation and recommended approval subject to 50 conditions.
  • At the local public hearing, 11 individuals spoke in favor and 26 against the project. More than 285 written public comments were submitted.
  • A joint stipulation resolving all issues was signed by South Branch, OPSB staff, the Hancock County Board of Commissioners, and the Ohio Farm Bureau. Bohn did not join and continued to oppose.
  • After an adjudicatory hearing, the OPSB approved the stipulation and issued the certificate with conditions. The board denied Bohn’s rehearing application, and Bohn appealed.

B. Issues on Appeal

Bohn raised multiple propositions of law challenging three core statutory findings the OPSB is required to make under R.C. 4906.10(A):

  1. R.C. 4906.10(A)(2): “The nature of the probable environmental impact”;
  2. R.C. 4906.10(A)(3): Whether the facility “represents the minimum adverse environmental impact”; and
  3. R.C. 4906.10(A)(6): Whether the facility will “serve the public interest, convenience, and necessity.”

He also challenged:

  • The adequacy of wildlife and flooding studies under former Ohio Adm.Code 4906‑4‑08;
  • The sufficiency of economic‑impact analysis under former Ohio Adm.Code 4906‑4‑06(E);
  • The reasonableness of setbacks and landscaping measures;
  • The OPSB’s approval of the stipulation under its three‑part settlement test; and
  • Compliance with R.C. 4903.09’s requirement for reasoned written decisions.

C. Holdings

The Supreme Court:

  • Applied the deferential “unlawful or unreasonable” standard of review applicable to public‑utilities and power‑siting decisions (R.C. 4903.13; R.C. 4906.12).
  • Held that the OPSB’s determinations under R.C. 4906.10(A)(2), (3), and (6) were not unlawful or unreasonable and were supported by sufficient probative evidence.
  • Confirmed that:
    • Applicants are not required to conduct or report exhaustive wildlife literature surveys of every species in the project vicinity;
    • The board may waive rule‑based requirements not mandated by statute; and
    • R.C. 4906.10(A)(3) does not require elimination of all adverse environmental impacts.
  • Rejected Bohn’s wildlife (including bald‑eagle), flooding/drain‑tile, setback, and economic‑impact challenges as failing on both law and evidence.
  • Upheld the OPSB’s approval of the stipulation under its three‑part test.
  • Found that the OPSB’s 58‑page order, incorporating staff findings and detailed analysis, complied with R.C. 4903.09.

Chief Justice Kennedy concurred, emphasizing that an “estimate” of economic impact under former Adm.Code 4906‑4‑06(E)(4) must, in principle, account for both positive and negative economic effects, although she agreed South Branch’s showing was sufficient in this case.

III. Detailed Analysis

A. Regulatory Framework and Standard of Review

1. The OPSB’s statutory role

The General Assembly has centralized siting decisions for “major utility facilities” in the OPSB. For generation facilities, “major utility facility” includes plants of 50 MW or more (R.C. 4906.01(B)(1)(a)). Applicants must:

  • File a detailed application addressing statutory factors in R.C. 4906.06 and board rules;
  • Undergo a staff investigation and report (R.C. 4906.07(C));
  • Participate in a local public hearing and an adjudicatory hearing (R.C. 4906.07(A)); and
  • Obtain a certificate supported by the eight substantive findings in R.C. 4906.10(A)(1)–(8).

The OPSB has broad authority to:

  • Adopt and waive rules needed to implement R.C. Chapter 4906 (R.C. 4906.03; Adm.Code 4906‑4‑01(B));
  • Require additional information from applicants (R.C. 4906.03(A)); and
  • “Conduct any studies or investigations” deemed necessary (R.C. 4906.03(B)).

The court reiterates its description of this as a “dynamic process” that allows the OPSB to impose and enforce certificate conditions to mitigate impacts and monitor compliance (citing In re Application of Buckeye Wind, L.L.C., 2012‑Ohio‑878, ¶ 16).

2. Stipulations and the three‑part test

The OPSB often resolves contested issues via joint stipulations among parties. These are not binding, but the board uses a three‑part reasonableness test, derived from utility practice and endorsed by the Supreme Court:

  1. Was the stipulation the product of serious bargaining among capable, knowledgeable parties?
  2. Does the settlement, as a package, benefit ratepayers/the public interest?
  3. Does the settlement package violate any important regulatory principle or practice?

The court again approves this framework, citing In re Application of E. Ohio Gas Co., 2023‑Ohio‑3289, ¶ 11, which in turn relied on Ohio Consumers’ Counsel v. Pub. Util. Comm., 2006‑Ohio‑4706, ¶ 16.

3. Standard of judicial review

R.C. 4906.12 equates review of OPSB orders with review of Public Utilities Commission orders. Under R.C. 4903.13:

The court will reverse, vacate, or modify an order only if, upon consideration of the record, it is “unlawful or unreasonable.”

As summarized in In re Application of Champaign Wind, L.L.C., 2016‑Ohio‑1513, ¶ 7, the court will not disturb factual findings when:

  • The record contains “sufficient probative evidence” supporting the board’s decision, and
  • The decision is not “manifestly against the weight of the evidence” or “so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty.”

Questions of law are reviewed de novo (citing In re Application of Icebreaker Windpower, Inc., 2022‑Ohio‑2742, ¶ 12).

This deferential standard is central: it frames the court’s refusal to reweigh evidence, second‑guess board judgments on credibility or technical issues, or reverse based on speculation about what additional evidence might have shown.

B. Precedents Cited and Their Influence

1. Renewable‑energy siting cases

  • Buckeye Wind, 2012‑Ohio‑878: Introduced the concept of OPSB certification as a “dynamic process” justifying conditions to monitor and mitigate impacts. The South Branch opinion uses this to reinforce the board’s authority to impose and enforce 50 project conditions.
  • Black Fork Wind Energy, L.L.C., 2013‑Ohio‑5478 & 2018‑Ohio‑5206:
    • 2013 decision: clarified the standard of review for OPSB orders; cited here for that proposition.
    • 2018 decision: introduced the notion that an appellant must show a realistic possibility of a different outcome to establish “harm” from an OPSB error (2018‑Ohio‑5206, ¶ 25). The South Branch court uses this to hold that even if wildlife analysis were imperfect, Bohn failed to show prejudice.
  • Champaign Wind, 2016‑Ohio‑1513: Cited for the evidentiary‑deference standard and for the principle that the Supreme Court will not substitute its judgment for the OPSB on factual matters such as setbacks and local impacts (¶ 30).
  • Alamo Solar I, L.L.C., 2023‑Ohio‑3778: Provided a key interpretive precedent on ecological surveys under former Adm.Code 4906‑4‑08(B)(1)(c)–(d). The court held that literature surveys and field surveys with “specific discussions” of relevant species, including raptors and aquatic life, were sufficient and that R.C. 4906.10(A)(3) “does not require the elimination of all adverse impacts” (¶ 43). South Branch invokes this to:
    • Uphold non‑exhaustive wildlife surveys that focused on relevant threatened or endangered species; and
    • Reject Bohn’s implicit demand for a “zero‑impact” standard.
  • Firelands Wind, L.L.C., 2023‑Ohio‑2555: Interpreted former Adm.Code 4906‑4‑06(E)(4) on economic impacts, holding the rule requires only an “estimate” of economic impact on local commercial and industrial activities and does not compel quantification of specific losses (e.g., tourism, farming, other energy providers) (¶ 58). South Branch leans heavily on Firelands to:
    • Reject Bohn’s argument that South Branch had to quantify all possible negative economic effects; and
    • Confirm that a model‑based economic impact study can satisfy the rule.
  • Icebreaker Windpower, 2022‑Ohio‑2742: Reiterated de novo review for legal questions and deference for factual findings under R.C. 4903.13. South Branch follows the same framework.

2. Administrative‑law and procedural precedents

  • Duff v. Pub. Util. Comm., 56 Ohio St.2d 367 (1978): Recognized the importance of staff reports in giving parties the information needed to challenge applications. Cited to explain the function of OPSB staff’s investigative report.
  • In re Letter of Notification Application of Columbia Gas of Ohio, Inc., 2024‑Ohio‑4747: Applied R.C. 4903.10(B)’s requirement that issues be raised in an application for rehearing to preserve them for appeal. South Branch uses this to bar Bohn’s new argument that bald eagles are a species of “recreational value” under the ecological‑survey rule.
  • In re Application of Ohio Power Co., 2018‑Ohio‑4698: The court refused to reverse a commission order based on speculation (¶ 50) and reiterated that R.C. 4903.09 requires reasoned decisions, not bare conclusions (¶ 24). Both themes recur in South Branch:
    • No reversal based on speculation about what further wildlife or economic data might have shown; and
    • Recognition that OPSB’s lengthy order met R.C. 4903.09’s reason‑giving requirement.
  • FirstEnergy Advisors, 2021‑Ohio‑3630: Clarified that R.C. 4903.09’s purpose is to provide “enough information to know how the [board] reached its result” (¶ 21). The South Branch court cites this to reject Bohn’s R.C. 4903.09 challenge.
  • Toliver v. Vectren Energy Delivery of Ohio, Inc., 2015‑Ohio‑5055: Emphasized that unsupported legal conclusions and undeveloped arguments do not demonstrate reversible error (¶ 30). Used repeatedly in South Branch to dismiss Bohn’s conclusory or underdeveloped claims (e.g., on setbacks and R.C. 4903.09).
  • Lycourt‑Donovan, 2017‑Ohio‑7566: Confirmed the Supreme Court will not reweigh evidence or assess witness credibility in reviewing commission/board decisions (¶ 35). South Branch invokes this principle when refusing to second‑guess the OPSB’s weighing of local opposition versus expert evidence.

3. Concurring references: Harvey Solar I

Chief Justice Kennedy references her separate opinion in In re Application of Harvey Solar I, L.L.C., 2025‑Ohio‑1503 (Kennedy, C.J., concurring in judgment only), to emphasize that the OPSB cannot properly evaluate “public interest” without evidence of both positive and negative economic impacts (¶ 81 of that concurrence). South Branch’s concurrence uses this to articulate a stricter conceptual understanding of what an “estimate” of economic impact should entail, even while agreeing South Branch’s showing was adequate on these facts.

C. Legal Reasoning on the Challenged Determinations

1. Wildlife and ecological impacts (R.C. 4906.10(A)(2) & (3))

a. Rule requirements and the scope of wildlife surveys

Former Ohio Adm.Code 4906‑4‑08(B)(1)(c)–(d) required applicants to:

  • Provide “the results of a literature survey of the plant and animal life within at least one‑fourth mile of the project area boundary” focusing on:
    • Species of commercial or recreational value; and
    • Species designated as endangered or threatened.
  • Conduct and report field surveys of species identified in the literature survey.

Bohn argued South Branch had to document all wildlife species in and near the project area and that its failure to do so made the OPSB’s environmental and “minimum adverse impact” findings unlawful.

The court disagreed. Reading the rule’s second sentence as controlling, it held the rule did not require:

“the literature survey to report on each wildlife species that may be found near the project site.”

Instead, as in Alamo Solar, it is sufficient for the literature and field surveys to focus on relevant species—particularly threatened, endangered, or economically significant species.

b. Evidence on wildlife impacts

Beyond the literature survey, the record contained:

  • Expert testimony from environmental consultant Lynn Gresock, who:
    • Oversaw environmental and cultural surveys for the project;
    • Identified common species using the agricultural site (turkey vultures, Canada geese, American robins, woodchucks, gray squirrels);
    • Concluded similar habitat is available nearby and project construction would not eliminate habitat for common species;
    • Explained that permanent vegetation after construction provides more stable wildlife habitat than crop fields.
  • Board‑staff investigations and field assessments, plus data from ODNR and USFWS, concluding:
    • Aside from potential impacts to certain bat species, no threatened or endangered wildlife species would be affected; and
    • Vegetation management is likely to enrich local wildlife habitat.

Staff ultimately concluded that, given mitigation and conditions, environmental impacts would not be “significantly adverse” and that the project represents the minimum adverse environmental impact.

C. Bald eagles and species of “recreational value”

Bohn highlighted bald eagles, citing public testimony about eagle sightings near the project. The court held:

  • The OPSB did consider bald eagles:
    • Gresock testified ODNR had identified nests in Hancock County but none near the project area;
    • The area had low nesting potential; and
    • No bald eagles were observed during field surveys.
  • At the time of filing, bald eagles were not listed as endangered or threatened by USFWS or ODNR.

The board thus concluded ecological impacts were adequately evaluated and the project represented the minimum adverse environmental impact—consistent with the understanding in Alamo Solar that R.C. 4906.10(A)(3) does not require elimination of all adverse impacts.

Bohn later argued bald eagles are of “recreational value” and so should have been included under the rule’s language. The court did not reach the merits of that claim because:

  • Bohn failed to raise this specific “recreational value” argument in his rehearing application; and
  • Under R.C. 4903.10(B), such failure is a jurisdictional bar to raising the issue on appeal (citing Columbia Gas, 2024‑Ohio‑4747, ¶ 16).

Even assuming error, the court found Bohn failed to show harm—drawing on Black Fork (2018). He offered only speculation that a different wildlife survey might have led to a different outcome. The court reiterated it “will not reverse a [board] order based on speculation” (Ohio Power, 2018‑Ohio‑4698, ¶ 50).

d. Key doctrinal points
  • Wildlife surveys must focus on species of regulatory or economic significance, not catalog every species present.
  • The OPSB may rely on staff expertise, external agency data, and expert testimony to evaluate ecological impacts.
  • R.C. 4906.10(A)(3) requires a “minimum adverse” impact, not zero impact.
  • Procedural preservation (raising arguments on rehearing) is critical; unpreserved theories are jurisdictionally barred.
  • Harm must be shown; mere possibility that more data might change the outcome is insufficient.

2. Flooding, stormwater, and drain tiles

a. Rule requirements

Former Ohio Adm.Code 4906‑4‑08(A)(4)(e) required applicants to:

“[P]rovide an analysis of the prospects of floods for the area, including the probability of occurrences and likely consequences of various flood stages, and describe plans to mitigate any likely adverse consequences.”

Bohn contended South Branch failed to supply this information and that the OPSB’s findings on flooding and drainage under R.C. 4906.10(A)(2)–(3) were therefore unlawful and unreasonable.

b. Evidence in the record

The court found the record plainly contradicted Bohn’s premise. South Branch’s application and amendments included:

  • A statement that no portion of the project area lies in a FEMA floodplain or flood hazard area, so the project is not expected to increase flood risk.
  • A stormwater‑management report by Westwood Professional Services, concluding:
    • The operational project would not alter existing flow and drainage patterns; and
    • Vegetative groundcover beneath panels would reduce runoff in most drainage areas compared to row crops.
  • A commitment to:
    • Obtain and comply with Ohio EPA’s General Permit for stormwater discharges associated with construction activity; and
    • Implement an OPSB‑approved stormwater management and erosion‑control plan.
  • A detailed drain‑tile mitigation plan, including:
    • Identifying existing tiles;
    • Designing to avoid tiles where possible;
    • Repairing any tiles damaged during construction; and
    • Retaining a local drain‑tile expert to survey and address any ponding or low‑lying problem areas.

The stipulation also added conditions specifically aimed at stormwater and drainage mitigation. The OPSB acknowledged that the area occasionally floods but found that South Branch’s controls and commitments adequately addressed those risks.

c. Conclusion on flooding/drainage

The court held:

  • South Branch complied with former Adm.Code 4906‑4‑08(A)(4)(e);
  • The OPSB reasonably determined the probable environmental impact of flooding and drainage, and
  • The project, with conditions, represented the minimum adverse environmental impact under R.C. 4906.10(A)(3).

3. Setbacks and visual impacts

a. Increased setbacks and Harvey Solar

After the adjudicatory hearing, South Branch voluntarily increased setbacks to align with those approved in Harvey Solar I and proposed in pending OPSB rules:

  • 300 feet from non‑participating residences;
  • 150 feet from public roads; and
  • 50 feet from non‑participating property lines.

Bohn challenged these as offering “no meaningful isolation” from harmful impacts, which he framed primarily as visual/aesthetic harms.

b. Court’s treatment of aesthetic impacts

The court emphasized the statutory standard in R.C. 4906.10(A)(3): the facility must represent the “minimum adverse environmental impact,” considering technology, alternatives, economics, and other factors. Nothing in that standard requires:

“That the solar panels will be invisible or completely screened off from a neighbor’s property.”

The record showed substantial mitigation of visual impacts:

  • A landscape plan prepared in consultation with a licensed landscape architect;
  • Specific focus on non‑participating residences with direct line‑of‑sight to the project;
  • Design elements to address aesthetics for travelers and nearby communities;
  • Commitment to maintain vegetative screening for the life of the project and to replace failed plantings to ensure a 90% survival rate after five years; and
  • OPSB staff review and confirmation of compliance.

The OPSB approved the increased setbacks along with these landscaping conditions as a package intended to minimize visual impacts.

The Supreme Court treated setback sufficiency as a quintessentially evidentiary question. Citing Champaign Wind (¶ 30), it refused to substitute its judgment for the OPSB’s on such matters, especially where Bohn offered no contrary expert evidence that 300‑foot setbacks plus landscaping were inadequate.

Bohn also suggested the OPSB erred by adopting similar setbacks from one project (Harvey Solar) to another (South Branch) without accounting for “unique challenges” in Washington Township and the Village of Arcadia, but he did not identify those unique factors or support the claim. The court, invoking Toliver, held conclusory allegations do not establish error.

4. “Public interest, convenience, and necessity” (R.C. 4906.10(A)(6))

a. Weight of local opposition and governmental input

Bohn argued that the volume of public opposition and the Township Trustees’ and other officials’ concerns meant the project could not serve the “public interest, convenience, and necessity.”

The court rejected the notion that public or political opposition is dispositive under R.C. 4906.10(A)(6). Instead:

  • The OPSB must consider such input, but must ultimately balance it against expert evidence, economic data, environmental analysis, and statewide policy considerations.
  • The Hancock County Commissioners, who formally intervened and joined the stipulation, provided “strong evidence” of local governmental support and anticipated community benefit.
  • Bohn was the only party to formally oppose the project at the adjudicatory hearing and on appeal; all other intervenors and staff supported the stipulation.

The court refused to reweigh the evidence by elevating public‑hearing opposition over expert and staff findings (citing Lycourt‑Donovan).

b. Economic impacts (see also concurrence)

Former Ohio Adm.Code 4906‑4‑06(E) required applicants to provide information on the project’s economic impact, including an “estimate of the economic impact of the proposed facility on local commercial and industrial activities” (division (E)(4)).

Bohn argued that:

  • South Branch’s economic study was “one‑sided,” focusing only on benefits;
  • The OPSB should have required analysis of:
    • Losses to local farms and businesses from converting agricultural land;
    • Potential negative effects on growth in the Village of Arcadia; and
    • Possible impacts on property values.

The court, following Firelands Wind, held that the rule requires an estimate of economic impact, not a comprehensive quantification of every conceivable negative effect. It does not, for example, mandate separate quantified analyses of tourism, farming, or other energy providers (Firelands, ¶ 58).

South Branch’s evidence included:

  • An economic‑impact study by Ohio University’s Voinovich School using the National Renewable Energy Laboratory’s “Jobs and Economic Development Impact” model, estimating:
    • Construction impacts: 294 direct full‑time equivalent (FTE) jobs and 463 indirect/induced FTE jobs, with $125.2 million in total economic output.
    • Operational impacts: 6 direct and 5 indirect/induced jobs, with $3.9 million in annual economic output.
  • Expert testimony from Erin Bowen of CohnReznick on property values:
    • Analyzed home sales near another Ohio solar facility;
    • Found properties sold in typical marketing times (30–90 days) and at prices between 2.2% below and 12.6% above list; and
    • Concluded no consistent, measurable negative impact on home values attributable to adjacency to large solar facilities.

While the OPSB heard lay testimony about potential negative impacts, the board characterized it as “unsubstantiated layperson testimony” and gave it less weight than the expert and modeled evidence. The Supreme Court found that approach consistent with its deferential standard of review.

The OPSB expressly found the net economic impact of the project to be positive and relied on that in its R.C. 4906.10(A)(6) analysis. The Supreme Court held this was neither unlawful nor unreasonable.

c. Concurrence’s refinement of the economic‑impact requirement

Chief Justice Kennedy agreed with the majority’s outcome but elaborated on what former Adm.Code 4906‑4‑06(E)(4) requires:

  • The word “estimate” (meaning “the act of appraising or valuing”) logically entails considering both upsides and downsides.
  • An accurate appraisal cannot “ignore downsides, including by refusing to determine whether downsides exist.”
  • While it is impractical to investigate every potential harm, the OPSB must at least:
    • Require applicants to “check for such economic data in the most likely places”; and
    • Evaluate both positive and negative impacts as part of determining what is in the public interest.
  • What that means in practice will vary by community (e.g., agricultural regions versus tourist areas or urban centers).

Because South Branch’s evidence included a “range” of economic impacts, including sales ranging from slightly below to above list price near another solar project, the Chief Justice concluded the applicant had, in effect, provided a sufficiently “honest estimate” for this case.

This concurrence subtly tightens expectations: while the majority focuses on the formal requirement (an estimate), the concurrence insists that, conceptually, that estimate must not be artificially one‑sided. Prospective applicants and the OPSB would be well‑advised to take this guidance seriously, even though it is not a controlling holding.

5. Approval of the stipulation

Bohn argued the stipulation among South Branch, OPSB staff, the County Commissioners, and the Farm Bureau:

  • Was not in the public interest; and
  • Did not comply with governing statutes and regulations.

The Supreme Court rejected both arguments, essentially for the reasons already discussed:

  • On the public‑interest prong, the OPSB:
    • Considered extensive evidence and testimony from all sides;
    • Weighed Bohn’s and public opponents’ concerns; and
    • Concluded the conditions negotiated in the stipulation enhanced the public interest (e.g., enhanced setbacks, robust landscaping, stormwater protections).
  • On the “regulatory principle or practice” prong, the Supreme Court had already found no statutory or rule violation in the board’s handling of wildlife, flooding, economic impacts, or setbacks.

Because the first prong (serious bargaining among knowledgeable parties) was not seriously contested and the other two were satisfied, the court found no error in the OPSB’s approval of the stipulation.

6. R.C. 4903.09: Reasoned decision requirement

R.C. 4903.09 requires the OPSB (via R.C. 4906.12) to issue:

“findings of fact and written opinions setting forth the reasons prompting the decisions arrived at, based upon said findings of fact.”

Bohn alleged the OPSB’s order lacked sufficient factual and legal explanation for “many” conclusions but did not specify which ones or how they were conclusory.

The Supreme Court compared the OPSB’s order to the standard articulated in FirstEnergy Advisors and Ohio Power:

  • The order spanned 58 pages, included explicit findings of fact and conclusions of law, and imposed 50 detailed conditions.
  • It summarized the evidence at length (¶¶ 36–93), evaluated the statutory criteria, and applied the three‑part stipulation test (¶¶ 102–108).
  • The OPSB expressly adopted staff’s findings as modified by the stipulation (¶ 107).

Given this, the court held the order provided “enough information to know how the [board] reached its result” and did not run afoul of R.C. 4903.09. Bohn’s generalized challenge, without specific examples or developed argument, could not satisfy his burden to demonstrate reversible error.

D. Impact and Implications

1. For future solar and renewable‑energy projects

This decision, read with Alamo Solar, Firelands Wind, and Harvey Solar, consolidates several important principles for developers:

  • Evidentiary sufficiency, not perfection. Applicants must comply with statutes and provide robust information, but they are not required to produce exhaustive wildlife catalogues or elaborate “worst‑case” flooding simulations. Probative expert evidence, credible modeling, and mitigation‑oriented conditions can suffice.
  • Rule flexibility and waivers. The OPSB may waive non‑statutory rule requirements where the overall record still allows it to make the R.C. 4906.10(A) findings. Developers should still strive to meet rule requirements, but isolated defects are not automatically fatal if the OPSB deems the overall record adequate.
  • Uniform or template conditions. The court’s acceptance of OPSB‑approved setback templates (like those first seen in Harvey Solar and applied here) suggests that standardized conditions may become common across projects, subject to case‑specific modifications.
  • Stipulations are powerful. Where developers can secure stipulations with staff and major local stakeholders (e.g., county commissioners, farm bureaus), and those stipulations are supported by expert evidence and mitigation, the OPSB and the court are likely to give them substantial weight.

2. For objectors and local governments

The opinion sends clear signals to project opponents:

  • Volume of opposition is not decisive. Numerous public comments and local opposition testimony will be considered but will not, by themselves, defeat a project that is otherwise supported by substantial expert evidence and conditions.
  • Substantiated evidence matters. The court repeatedly discounts “unsubstantiated layperson testimony” that contradicts expert studies without its own factual underpinnings. Opponents seeking to influence the OPSB or prevail on appeal need to:
    • Commission their own expert studies (e.g., on flooding, wildlife, property values, economic impacts);
    • Critically analyze and rebut the applicant’s studies; and
    • Preserve specific arguments in rehearing applications.
  • Preservation of issues is critical. The dismissal of the “recreational value”/bald‑eagle argument illustrates that legal theories not raised on rehearing cannot be raised on appeal.
  • Engagement in stipulation negotiations. Bohn did not participate in stipulation discussions. The court notes that the stipulation’s terms were the product of serious bargaining among intervenors; objectors who decline to participate may lose opportunities to shape project conditions.

3. For the OPSB

The decision validates much of the OPSB’s current practice but also carries guidance:

  • Staff investigations and detailed conditions are critical. The Supreme Court repeatedly relies on staff’s experience and investigative efforts, and on detailed, enforceable conditions, to uphold OPSB determinations.
  • Economic impact analysis must be honest and balanced. The majority validates the Firelands standard (an “estimate” is sufficient), but the concurrence emphasizes that this estimate must account, in some fashion, for potential negative impacts. The board should:
    • Ensure future applicants at least consider likely negative economic effects; and
    • Explain how both positive and negative evidence factor into the R.C. 4906.10(A)(6) analysis.
  • Decision‑writing remains important. The court scrutinized the OPSB order under R.C. 4903.09 but ultimately found it sufficiently reasoned. Maintaining this level of detail—especially in contested cases—will be essential to withstand judicial review.

4. For Ohio administrative law generally

South Branch reinforces recurring administrative‑law themes:

  • Deference to specialized agencies. Courts will defer to the OPSB’s technical judgments and fact‑finding when supported by “sufficient probative evidence,” even in politically sensitive contexts like large‑scale solar siting.
  • Harmless‑error and speculation. Even if the board’s processes are imperfect, appellants must show a realistic possibility of a different outcome. Speculation about what further study might reveal is insufficient.
  • Importance of concurring opinions. While not binding, Chief Justice Kennedy’s concurrence on economic‑impact analysis will likely influence how the OPSB and future litigants approach R.C. 4906.10(A)(6) going forward.

E. Complex Concepts Simplified

1. “Probable environmental impact” vs. “minimum adverse environmental impact”

  • Probable environmental impact (R.C. 4906.10(A)(2)): The OPSB must identify what environmental effects are likely to occur if the project is built—e.g., impacts on wildlife, water, land use, aesthetics, noise.
  • Minimum adverse environmental impact (R.C. 4906.10(A)(3)): Once probable impacts are known, the OPSB must decide whether, considering:
    • Available technology,
    • Economic feasibility, and
    • Alternative designs or sites,
    the project configuration and conditions result in the least environmental harm reasonably achievable under the circumstances.

The statute does not require zero harm; the question is whether further meaningful reductions are reasonably possible, given the tradeoffs.

2. “Public interest, convenience, and necessity” (R.C. 4906.10(A)(6))

This broad standard asks whether, overall, building the project is good for the public. The OPSB considers:

  • State and local economic benefits (jobs, tax revenue, landowner income);
  • Energy‑policy goals (e.g., adding zero‑emission generation);
  • Impacts on local communities (aesthetics, noise, traffic);
  • Environmental impacts and mitigation; and
  • Public and governmental input.

The board weighs these benefits and burdens holistically; no single factor is dispositive.

3. Stipulations and the three‑part test

A stipulation is essentially a settlement among some or all parties that resolves contested issues. The OPSB uses a three‑part test to decide whether to adopt such a settlement:

  1. Were negotiations serious and conducted by capable, informed parties?
  2. Does the package, taken as a whole, benefit the public?
  3. Does it comply with and not undermine important regulatory principles?

Even when a stipulation is adopted, non‑signatory parties remain free to oppose it and present evidence.

4. “Sufficient probative evidence” and appellate deference

“Probative evidence” is evidence that actually tends to prove or disprove a fact. “Sufficient” probative evidence means there is enough such evidence in the record that a reasonable decision‑maker could reach the OPSB’s conclusion.

On appeal, the Supreme Court:

  • Asks whether this threshold is met; it does not re‑weigh competing evidence; and
  • Does not overturn the OPSB’s findings just because it might have decided differently if weighing the evidence from scratch.

5. Drain tiles and stormwater permits

  • Drain tiles: Perforated pipes buried beneath fields to drain excess water and make land farmable. Construction activities can break tiles, potentially causing localized flooding or ponding.
  • Stormwater permits: The Ohio EPA’s construction stormwater permit requires developers to implement erosion and sediment‑control practices (e.g., silt fences, sediment basins, stabilized construction entrances) to prevent runoff pollution and manage stormwater during construction.

These tools are standard components of mitigation in agricultural settings and were central to the OPSB’s comfort with South Branch’s flooding and drainage impacts.

IV. Conclusion

In re Application of S. Branch Solar, L.L.C. reinforces and refines Ohio’s legal framework for certifying large solar projects. The Supreme Court:

  • Affirmed broad deference to the OPSB’s technical judgments and fact‑finding, so long as supported by sufficient probative evidence;
  • Clarified that ecological and flooding analyses need not be exhaustive, provided they reasonably identify and address probable impacts, especially on threatened or endangered species and sensitive hydrology;
  • Confirmed that R.C. 4906.10(A)(3) requires “minimum adverse” rather than zero environmental impact;
  • Held that an “estimate” of economic impact under former Adm.Code 4906‑4‑06(E)(4) does not require quantification of every possible negative effect, while the concurrence underscored that truly honest estimates must account for potential harms as well as benefits;
  • Clarified that public and local‑government opposition, though important, is not dispositive in the “public interest, convenience, and necessity” analysis; and
  • Reaffirmed that detailed, reasoned written orders and well‑negotiated stipulations are central to sustaining OPSB decisions on appeal.

For developers, the decision provides a clearer roadmap for constructing a defensible OPSB record. For opponents and local governments, it highlights the need for substantiated, expert‑backed challenges and careful issue preservation. For the OPSB, it both validates existing practices and nudges toward more explicit consideration of negative economic impacts in future proceedings.

Taken together with recent wind and solar cases, South Branch Solar marks a maturing body of Ohio law governing renewable‑energy siting, balancing local concerns, environmental protection, and the state’s broader energy and economic objectives under a coherent administrative‑law framework.

Case Details

Year: 2025
Court: Supreme Court of Ohio

Judge(s)

Brunner, J.

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