Visual-Simulation Requirement Extends to Solar-Project Substations as Part of the “Facility” Under Ohio Power Siting Board Rules

In re Application of Oak Run Solar Project, L.L.C., Slip Opinion No. 2026-Ohio-1849 (Ohio May 26, 2026)

1. Introduction

This Supreme Court of Ohio decision arises from the Ohio Power Siting Board’s approval of a certificate of environmental compatibility and public need for the Oak Run Solar Project in Madison County, Ohio—an 800 MW solar generation facility coupled with a 300 MW alternating-current battery-energy storage system (“BESS”) and related transmission infrastructure.

The appellants—Somerford Township, Deercreek Township, Monroe Township, and the Madison County Board of Commissioners (collectively, “the local governments”)—challenged the Board’s approval order and its denial of rehearing. Their central theme was informational: that the Board approved the project without obtaining the information required to make reasoned findings under R.C. 4906.10(A), particularly regarding environmental and visual impacts, water resources, plant and wildlife impacts, and safety risks posed by the BESS.

The Court’s most consequential holding is narrow but practical: when Board rules require “photographic simulations or artist’s pictorial sketches” of the “facility” from “public vantage points,” those depictions must include substations and their tall support structures if they are part of the “facility” as defined by rule. The case was remanded for the Board to obtain and consider compliant visual depictions of the substations.

2. Summary of the Opinion

Disposition

• Affirmed in part (most of the Board’s determinations and conditions were upheld).
• Reversed in part (visual-impact review was incomplete due to missing substation depictions).
• Remanded (Board instructed to more thoroughly address visual impacts consistent with the opinion).

3. Analysis

A. Precedents Cited

1) Standard of review and agency discretion

• In re Application of Harvey Solar I, L.L.C., 2025-Ohio-1503: The Court relied on Harvey Solar for the framework that the Board must make eight substantive determinations under R.C. 4906.10(A), and for the bifurcated “unlawful” (de novo legal review) versus “unreasonable” (deferential review of discretionary determinations) standard. It also supplied the principle that the Board “is not required to resolve every issue before issuing a certificate,” supporting conditional approvals that leave certain details to later filings and staff compliance review.
• In re Application of Alamo Solar I, L.L.C., 2023-Ohio-3778 and In re Application of Firelands Wind, L.L.C., 2023-Ohio-2555: These cases were used to articulate the Board’s discretion under “open-textured” statutory criteria and to define “unreasonable” as decisions not supported by evidence or internally inconsistent, while warning courts not to reweigh evidence or second-guess factual determinations.

2) Visual impacts: mitigation versus required depictions

• In re Application of Alamo Solar I, L.L.C., 2023-Ohio-3778: The Court used Alamo Solar to reject the argument that Adm.Code 4906-4-08(D)(4)(f) requires a specific vegetative-screening plan or complete visual shielding; describing mitigation measures can be sufficient, and “the elimination of all adverse impacts” is not required.
• The Court’s new contribution is to separate mitigation-detail disputes (often suitable for conditions and later refinement) from baseline-required visual depictions mandated by rule, where omission can deprive the Board of information required to make statutory determinations.

3) “Prejudice” as a prerequisite to reversal

• In re Application of Ohio Power Co., 2014-Ohio-4271, In re Application of Duke Energy Ohio, Inc., 2021-Ohio-3301, and In re Application of Champaign Wind, L.L.C., 2016-Ohio-1513: These cases were central to the lead opinion’s insistence that even if there is procedural or filing-rule error, reversal requires a showing that the appellant was “meaningfully affected” (i.e., prejudiced).
• In re Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy Co., 2014-Ohio-1532: Cited to reject “inherent harm” theories—i.e., that statutory violation alone automatically establishes prejudice.

4) Scope of issues preserved for appeal (notice of appeal)

• In re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc., 2017-Ohio-7566 and Cincinnati Gas & Elec. Co. v. Pub. Util. Comm., 2004-Ohio-5466: Used for the rule that assignments of error in the notice of appeal “delimit the issues,” and omissions can be jurisdictional.
• In re Letter of Notification Application of Columbia Gas of Ohio, Inc., 2024-Ohio-4747: The Court applied this case to hold that context matters; citing specific pages of a rehearing application in the notice of appeal can preserve issues even if not artfully stated.

5) Alternative grounds for affirmance without cross-appeal

• In re Applications of Dayton Power & Light Co., 2025-Ohio-2953 (citing Fedor v. United Healthcare, Inc.): The Court relied on this to consider Oak Run’s alternative argument that substations were not “facilities,” even though the Board had not relied on that rationale.

6) Dissents’ cited authorities (context for intra-court disagreement)

• In re Application of S. Branch Solar, L.L.C., 2025-Ohio-5679, In re Black Fork Wind Energy, L.L.C., 2018-Ohio-5206, In re Application of Buckeye Wind, L.L.C., 2012-Ohio-878, and In re Application of Ohio Power Co., 2018-Ohio-4698 appear in the separate opinions to argue that (i) visual-depiction requirements are not necessarily determinative, (ii) prejudice requires a realistic possibility of a different outcome, and (iii) some issues should not be deferred to staff after certification.

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B. Legal Reasoning

1) The operative statutory scheme: R.C. 4906.10(A) determinations require adequate inputs

The Board’s authority to grant a certificate is conditioned on making the eight determinations listed in R.C. 4906.10(A). The local governments targeted four: environmental impact (A)(2), minimum adverse impact (A)(3), compliance with environmental statutes/rules (A)(5), and public interest/necessity (A)(6).

The Court treated Board rules as implementing guardrails: failure to follow them may be “unlawful,” and if it deprives the Board of necessary information, it may render R.C. 4906.10(A) determinations unsupported.

2) Visual mitigation (Adm.Code 4906-4-08(D)(4)(f)) versus required visual depictions (Adm.Code 4906-4-08(D)(4)(e))

The Court first distinguished between:

• Mitigation descriptions under Adm.Code 4906-4-08(D)(4)(f): The applicant must “describe measures” to minimize adverse visual impacts. The Court held Oak Run did so (setbacks, fencing choices, tree retention, commitment to screening discussions), and the Board additionally imposed a landscape-and-lighting plan condition requiring vegetative screening and maintenance.
• Mandatory visual depictions under Adm.Code 4906-4-08(D)(4)(e): The applicant must provide photographic simulations or artist’s sketches from public vantage points covering the range of landscapes/viewer groups/scenic resources in the study area.

The Court accepted that Oak Run failed the second obligation as to substations, and that this failure mattered because it undermined the Board’s ability to assess visual impacts and make R.C. 4906.10(A) findings.

3) Why substations had to be depicted: the definitional chain (“facility” includes “associated facilities”)

The legal fulcrum is the Court’s rule-interpretation analysis:

• Adm.Code 4906-1-01(W): “facility” means “the proposed major utility facility and all associated facilities.”
• Adm.Code 4906-1-01(F)(3): “associated facilities” include “substations necessary to interconnect the facility to the electric grid.”

With those definitions, the Court concluded that substations are unambiguously part of the “facility” and must be included in the visual simulations or sketches required by Adm.Code 4906-4-08(D)(4)(e).

4) “Public vantage points” means ground-level, publicly accessible viewpoints

Oak Run attempted to justify minimal visibility with an aerial/top-down photo. The Court rejected this as not fitting “public vantage point,” reasoning from ordinary dictionary meaning: a vantage point is a point of view accessible or visible to the community. This matters because it ties the rule to lived public experience (roads, public spaces), not remote or technical perspectives.

5) Prejudice analysis: a sharpened distinction between omission types

A notable doctrinal move is the Court’s explicit reconciliation of inconsistent outcomes across propositions of law. It held:

• For water-quality and plant/wildlife rule deficiencies, reversal still requires prejudice—record evidence showing meaningful baseline change or likely significant impacts. The Court concluded the local governments did not carry that burden.
• For visual depictions of substations, the Court found prejudice because the omission concerned tall, undeniably constructed features (85–115 feet) that would substantially alter the viewshed baseline. In the Court’s view, the harm was inherent in the inability to evaluate the public-facing visual departure caused by those structures.

This is the opinion’s most operational “new rule” for practitioners: prejudice remains required, but the Court signaled that certain omissions—especially those involving conspicuous, material changes to a community’s visual environment—more readily establish prejudice because the baseline departure is evident and the Board’s visual-impact assessment is necessarily incomplete without required depictions.

6) BESS safety issues: conditions and later filings are acceptable (within limits)

The Court upheld the Board’s approach to BESS risk management, emphasizing:

• the Board may impose conditions and allow details to be finalized later;
• Oak Run’s commitments to National Fire Protection Association standards, engineering review, emergency response planning, training, equipment, and water-supply planning;
• insufficient record proof that risks would materialize beyond speculative possibility.

The dissenting opinions sharply disagreed, viewing omission of a developed emergency plan and water-source identification as beyond deferrable “details.”

7) Completeness/burden shifting: the Court rejects a categorical “complete application” reversal rule

The local governments argued that allowing the application to proceed despite missing information shifted burdens and impaired participation. The Court rejected this, pointing to discovery tools and the ability to present/cross-examine witnesses, and reiterating that alleged incompleteness must still connect to prejudicial harm.

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C. Impact

1) Practical effect on Ohio Power Siting Board proceedings

• Applicants: Must treat substations as non-optional content for visual simulations/sketches under Adm.Code 4906-4-08(D)(4)(e). If substation design is not final, the applicant may need conceptual depictions adequate to convey scale, height, and visibility from public vantage points, or otherwise seek procedural accommodations (e.g., waivers where available) rather than omit.
• Board staff and adjudicators: Should scrutinize the completeness of visual-impact submissions at intake and during staff review, because missing depictions can now be a clear remand trigger.
• Intervenors/opponents: This case supplies a targeted litigation strategy: identify prominent associated facilities (substations, gen-tie structures) and test whether required visual depictions actually show them from public vantage points.

2) Doctrinal influence: “prejudice” remains the gate—but not uniformly hard to show

The opinion preserves the prejudice requirement but illustrates that prejudice can be established by the nature of the omission itself when the missing information prevents evaluation of an obvious, material baseline departure (here, tall substation structures). Future litigants will likely argue by analogy that certain missing baselines (water, wildlife, noise) should likewise be treated as inherently prejudicial—an argument previewed by the Kennedy and Hawkins dissents.

3) Likely next-step consequences on remand

The remand is directed to “more thoroughly address the project’s visual impacts” by considering proper photographic simulations or sketches of substations. That may lead to:

• additional conditions (screening, siting tweaks, setbacks) specific to substations;
• a more explicit R.C. 4906.10(A)(2), (3), and (6) rationale grounded in compliant depictions;
• a clarified record for subsequent judicial review.

4. Complex Concepts Simplified

• “Major utility facility” (R.C. 4906.01; R.C. 4906.04): A large energy facility (including certain solar projects) that cannot be built without a state certificate.
• Certificate of environmental compatibility and public need (R.C. 4906.10(A)): The Board’s approval, which requires specific findings that the project’s impacts are acceptable and the project serves the public.
• “Unlawful” vs. “unreasonable” review: “Unlawful” is about legal mistakes (like misreading a statute or ignoring a rule). “Unreasonable” is about whether the Board’s discretionary determinations are supported by the record and coherent.
• “Viewshed” and “public vantage points”: The visible landscape as experienced by people from places they can actually stand or travel (e.g., roads), not from aerial or technical perspectives.
• “Associated facilities”: Components necessary to make the project function and connect to the grid—like substations—treated as part of the overall “facility” under Board rules.
• “Prejudice” requirement: Even if the Board or applicant violated a rule, the challenger generally must show the violation mattered—i.e., it meaningfully affected the challenger or could affect the outcome.
• BESS (battery-energy storage system): Large batteries storing energy; opponents raised concerns about fire/toxic release. The Court accepted the Board’s use of conditions and later plans to address safety.

5. Conclusion

In re Application of Oak Run Solar Project, L.L.C. establishes a concrete compliance expectation in Ohio siting practice: the Adm.Code 4906-4-08(D)(4)(e) requirement for photographic simulations or artist’s sketches from public vantage points applies to substations because substations are “associated facilities” and thus part of the “facility.” The Supreme Court treated the absence of substation depictions as a meaningful informational defect that impaired statutory visual-impact determinations under R.C. 4906.10(A), warranting a partial reversal and remand.

At the same time, the decision reinforces that challengers generally must prove prejudice from rule noncompliance—an axis that produced sharp disagreement among the justices as to whether missing baseline water-quality, wildlife, and BESS safety information should have compelled broader relief. The resulting precedent is both practical and contested: it strengthens visual-depiction rigor for prominent infrastructure, while leaving open future battles over when missing environmental baselines should be deemed prejudicial as a matter of law.