Power Company Can Use Herbicides To Clear Vegetation Under Transmission Lines
By Dan Trevas | November 20, 2024

Three 1948 easements allow Ohio Edison to "remove" vegetation from under its power lines by using herbicides despite the objections of Harrison County landowners who opposed the spraying, the Supreme Court of Ohio ruled today.

In a 5-2 decision, the Supreme Court reversed a Seventh District Court of Appeals ruling, which found Ohio Edison could remove vegetation by trimming or cutting it, but could not remove it in any other manner.

Writing for the Court majority, Justice Michael P. Donnelly explained at issue in the case was the easements' wording giving Ohio Edison the right to "trim, cut and remove at any and all times such trees, limbs, underbrush or other obstructions" to maintain its transmission lines. The Seventh District ruled the lack of a comma between the words "cut" and "remove" limited the power company's options.

Justice Donnelly wrote that when reading the easements in context, it is clear that Ohio Edison has other options on how to "remove" objects from underneath its power lines. And because one definition of "remove" is to "eliminate or eradicate," Ohio Edison can use herbicides to clear brush.

"The easements' purpose is to permit the removal of vegetation and other obstructions from the property that may interfere with or endanger Ohio Edison's infrastructure or operations. And herbicides are a modern invention that promotes that purpose," he wrote.

Justices R. Patrick DeWine, Melody Stewart, Jennifer Brunner, and Joseph T. Deters joined Justice Donnelly's opinion.

In a dissenting opinion, Chief Justice Sharon L. Kennedy wrote that she agreed the easements allow Ohio Edison to remove objects by means other than cutting and trimming. However, herbicides do not "remove" vegetation, she stated, and the company is not authorized by the easements to use herbicides. Citing the testimony of power company vegetation management officials, herbicides prevent the regrowth of trees and brush.

"But inhibiting regrowth of vegetation is not the same thing as removing it," she stated.

Justice Patrick F. Fischer joined the chief justice's dissent.