Progress Editor

 PAULDING – A lawsuit filed by several local landowners challenging the state’s mandated windfarm setbacks has seen a flurry of activity recently, including a motion from a group of residents in another county to join the proceedings and a motion from the state to dismiss the suit.

 On Nov. 13, county landowners Barbara Jean Morris of Paulding, Ronnie and Victoria Kadesch of Paulding and Richard King of Payne and the Mid-Atlantic Renewable Energy Coalition filed a lawsuit against the State of Ohio. These plaintiffs allege the Ohio General Assembly violated the state constitution when it passed a dramatic increase in wind setback mandates.

 Documents state the plaintiffs want to place wind turbines on their properties and develop wind-energy projects but cannot due to the new setback rules, which is costing the plaintiffs the ability to earn income, as much as $15,000 per turbine annually.

 The suit, filed in Paulding County Common Pleas Court, seeks a declaratory judgment that House Bill 483 Wind Turbine Setback provisions are unconstitutional as they were passed in violation of the single-subject rule contained in the Ohio Constitution.

 It also seeks a preliminary and permanent injunction prohibiting the state from enforcing HB 483 setback provisions.

 Thirty days later, on Dec. 13, the State of Ohio motioned for the court to dismiss the lawsuit “for failure to state a claim.”

 The State argues the plaintiffs cannot establish a violation of the one-subject provision of the Ohio Constitution because Ohio had rational and legitimate reasons for including the wind regulations in its operational bill. “The setbacks were not a random provision included in an unrelated bill. Rather, they were part of a budget bill that also included conditions on state programs,” according to documents filed by the Ohio Attorney General’s office.

 The plaintiffs responded two weeks later by filing a combined memorandum in opposition to the State’s motion to the dismiss.

 Attorneys argue that HB 483 was an appropriations bill and the state legislature was simultaneously considering two other bills – SB 310, a non-appropriations energy bill; and HB 490, an issue-specific Mid-Biennium Review (MBR) bill for agriculture, environmental protection and resources. Instead, ... “the Senate Finance Committee adopted over 120 new amendments to HB 483 during the final hearing of the bill ... the amendment that nearly tripled the statutory minimum wind turbine setback distance from property lines was never publicly disclosed or even discussed before that time.” No public testimony was held or allowed on the matter prior to the vote.

 If the court does not overrule the State’s motion to dismiss, the plaintiffs are asking the court to convert the State’s motion to a motion for summary judgment.

 In the meantime, new players have arrived.

 On Dec. 21, 48 residents of Seneca County filed a motion to intervene [entering a lawsuit already in progress]. These individuals and couples reside in the footprint of or near proposed wind turbine projects.

 “If the statutory wind turbine setbacks were to be declared unconstitutional in this action, the affected residents should immediately be put at risk of suffering physical harm and detrimental health effects from wind turbines sited too close to their residences. The affected residents’ interests are not adequately represented by any existing party to this action,” according to the Seneca residents’ motion.

 A week later, the Ohio Environmental Council (OEC) filed an amicus curiae brief in opposition of the State’s motion to dismiss.

 An amicus curiae (“friend of the court”) brief is submitted by one not a party to a lawsuit to aid the court in by offering information, expertise or insight that has a bearing on the issues in the case. If a decision could affect an entire industry, companies other than the litigants may wish to have their concerns heard.

 In its 19-page motion, the OEC affirmed its mission to protect Ohio’s environment. “The OEC submits its amicus brief with a particular focus on the clean energy needs of Ohioans, and a desire to ensure they have access to a cleaner, sustainable future.”

 The organization refuted the State’s arguments for dismissal on the basis of several points, claiming HB 483 violates the one-subject rule; the setback provisions are “a classic example of ‘logrolling’” – which allows legislators to attach “riders” to pieces of legislation; and the setback provisions are not related to the operation of state government or appropriations.

 Two additional filings were made on Friday, Jan. 4.

 The first was the State’s reply in support of its motion to dismiss. The Ohio Attorney General’s office reiterated its arguments for dismissal, including insisting all of HB 483’s topics are related to the single subject of operation of state programs and the setback provisions are constitutionally valid.

 The second document was a plaintiffs’ motion opposing the Seneca County residents’ motion to join the lawsuit. The plaintiffs claim the Seneca residents are not appropriate intervenors because their interests are too speculative to support intervention, they do not have a legally protectable interest in this matter, the disposition of the case will not impede their ability to protect their interests and the residents already are advocating on their own behalf.

 Further, counsel for the Seneca residents have a record of attempting to intervene in court actions to advocate for anti-wind interests, according to the plaintiffs. “If the Seneca residents are permitted to intervene through the same counsel that represents coal industry interests [and] systematically attempts to intervene in wind-energy matters ... this straight-forward declaratory judgment action will become protracted litigation unnecessarily.”

 To date, Judge Tiffany Beckman has not ruled on any of the motions and no court dates have been scheduled.