Court Affirms Siting Board Approval of Lucas County Pipeline Project

The Supreme Court of Ohio today rejected a landowner’s challenge to the construction of a 3.7-mile natural gas distribution pipeline in Lucas County.

In a unanimous opinion, the Supreme Court found the Ohio Power Siting Board, through its accelerated application approval process, did not act unlawfully and unreasonably in approving the Ford Street pipeline in Maumee. Yorktown Management appealed the board’s approval of Columbia Gas of Ohio’s project, arguing the board improperly allowed the pipeline to be built 42 feet away from its commercial office building.

Writing for the Court, Justice Melody Stewart noted that the Power Siting Board conditioned approval of the project on Columbia complying with all relevant rules and regulations, including federal pipeline safety standards.

Pipeline Qualifies for Accelerated Review
In December 2022, Columbia sought a construction permit from the Power Siting Board to build the Ford Street pipeline. The proposed pipeline will be 3.7 miles in length, 30 inches in diameter, and is classified as a high-pressure distribution line.  The length and operating pressure make it a “major utility facility,” which requires board approval under state law.

Because the pipeline is less than five miles, the project qualified for accelerated review under R.C. 4906.03(F)(3). Under the law and state administrative regulations, the board must approve an accelerated application within 90 days unless the board suspends the review for “good cause shown.” The pipeline is automatically approved if the board takes no action in 90 days.

After Columbia filed its application, Yorktown intervened before the board to oppose it. Yorktown argued it would suffer harm if the pipeline were permitted to be built along its western property line and so close to its commercial building.

Under the rules, the board staff was required to investigate Columbia’s application and submit a written report and recommendations to the board seven days before the automatic approval deadline. The staff analyzed the project's probable impact on land use, safety, cultural resources, surface waters, and threatened and endangered species. The staff recommended approval if Columbia Gas met four conditions.

Three days before the 90-day approval deadline, Yorktown requested the board suspend consideration of the application, asserting that Columbia and board staff failed to address safety concerns. Yorktown stated the 30-foot easements Columbia secured from property owners along the pipeline route were not wide enough to operate and maintain the pipeline safely. It also argued a 50-foot temporary construction easement was not wide enough to build the pipeline safely.

Yorktown sought a full hearing before the board to resolve its concerns. The board did not act on the application within 90 days, and therefore, by operation of the relevant law and regulations, the pipeline was automatically approved. Yorktown requested a rehearing, which the board denied.

Yorktown appealed to the Supreme Court, which was required to hear the case.

Supreme Court Rejected Yorktown’s Criticism of Board’s Review
Yorktown alleged there was a discrepancy between the distance of the pipeline from its property compared to what Columbia had stated was needed in its application, and what it requested on a prior project, Justice Stewart explained.

Yorktown claimed that Columbia had indicated in the application that the pipeline would require a permanent easement along the pipeline route with a minimum width of 50 feet. Yet, Columbia obtained only a 30-foot-wide easement from the property adjacent to Yorktown’s property. Yorktown argued that because the pipeline would be 42 feet from the company’s building and 32 feet from its property edge, it posed a risk to human health.

The Court found Columbia’s application discussed easement widths in two sections. The portion stating the need for a 50-foot-wide permanent easement was in the application section addressing ecological concerns, such as national and state parks, floodplains, wetlands, rivers, and wildlife areas, the opinion noted. The 50-foot requirement only applied to those identified areas of ecological concern along the pipeline route. In a portion regarding “Construction Plans,” Columbia stated its pipeline projects typically use a 50-foot easement, but easement width varies based on the circumstances. Construction drawings attached to the application also depicted easements of varying widths, the opinion noted. The Court rejected Yorktown’s argument that the application committed Columbia to a 50-foot-wide easement for the entire pipeline.

Yorktown also cited testimony from a Columbia engineer regarding a different project in Union County. During a hearing to seek property to construct the Northern Loop pipeline in Union County, the engineer stated the company required easements with a minimum width of 50 feet to operate, maintain, and repair the pipeline. Yorktown noted the Ford Street pipeline would be six inches larger than the Northern Loop pipeline, and the engineer’s testimony raised significant safety concerns about how Columbia could operate and maintain the pipeline with no more than a 30-foot easement.

The Court noted the Northern Loop pipeline is a transmission pipeline, which operates under much higher pressure than a distribution pipeline such as Ford Street. The board did not find the testimony relevant because the projects were not similar, the Court noted. The opinion also indicated Yorktown failed to raise the issue with the board properly, and the Court could not consider the testimony.

Yorktown also complained the board improperly deferred to Columbia on health and safety issues by relying on the information in the pipeline application rather than conducting its own thorough review.  The Court noted the board conditioned approval on Columbia complying with all relevant rules and regulations, including pipeline-safety standards, and had exercised its authority to condition approval on future compliance with federal, state, and local laws and regulations.

2023-0649. In re Letter of Notification Application of Columbia Gas of Ohio, Inc., Slip Opinion No. 2024-Ohio-4747.

View oral argument video of this case.

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