Power Company Can Use Herbicides To Clear Vegetation Under Transmission Lines

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.

Landowners Object to Herbicide Spraying
After a massive blackout in 2003, federal regulators required electric utilities to develop vegetation management programs to ensure vegetation growth does not interfere with power lines. In 2017, Ohio Edison informed Craig, Jackie, and Scott Corder that it planned to use herbicides on property they owned to clear vegetation.

The Corders objected to the use of herbicides and pointed to the 1948 easements granting Ohio Edison access to their property to maintain the transmission lines. The language of the easements indicated Ohio Edison was allowed to “erect, inspect, operate, replace, repair, patrol and permanently maintain” its wires and structures to transmit electricity, and the company was granted the “right to trim, cut and remove at any and all times such trees, limbs, underbrush or other obstructions” that may interfere with its operations.

The Corders filed a lawsuit in Harrison County Common Pleas Court to prevent Ohio Edison from spraying herbicides.

Dispute Reaches Supreme Court and Returns to County
The trial court ruled it did not have the authority to consider the Corders’ case, stating the matter was exclusively within the jurisdiction of the Public Utilities Commission of Ohio. The Corders appealed the decision to the Seventh District, which reversed the trial court and determined it could decide the matter. Ohio Edison appealed the Seventh District’s decision to the Supreme Court.

In a 2020 decision, the Supreme Court agreed with the Corders that the trial court could rule in the matter and remanded the case to Harrison County.

The trial court then determined the easement language was unambiguous and did not give Ohio Edison the ability to remove trees, limbs, or underbrush by any method it chose. The court ruled Ohio Edison was not permitted to use herbicides.

Ohio Edison appealed to the Seventh District. The Seventh District sided with the Corders, but disagreed with the trial court’s reasoning. The appeals court found the easement language was ambiguous because of the lack of a comma in the phrase to “trim, cut and remove.” Because of the ambiguity, the Seventh District held that Ohio Edison could only remove vegetation it trimmed or cut, and could not use herbicides.

Ohio Edison appealed to the Supreme Court, which agreed to hear the case again.

Supreme Court Analyzed Easements
Justice Donnelly explained the Seventh District considered the easements ambiguous because the word “remove” is subject to multiple interpretations. However, for the easements to be ambiguous, their terms must be “susceptible to more than one reasonable interpretation,” he wrote.

The opinion noted the appeals court put too much emphasis on the lack of a comma between “cut” and “remove.” But in the context of the easements as a whole, a reasonable interpretation of “remove” must apply to more than cutting and trimming because the easements also allow for the removal of “other obstructions.” The Court’s 2020 decision, Justice DeWine’s opinion, concurring in part and dissenting in part, noted other obstructions to the power lines could include “a stone wall, a treehouse, or a kite caught on the power lines,” which the company would not remove by cutting or trimming.

Finding that the easements gave Ohio Edison the right to remove objects from underneath the powerlines separate from its right to trim or cut obstructions, the Court considered whether the use of herbicides is a form of removal.

The Corders referred to dictionary definitions of “remove” as meaning “to change or shift the location, position or station, or residence of,” or to “move by lifting, pushing aside, taking away or off, or the like.”

The Court noted the same dictionary, “Webster’s New International Dictionary,” also defined “remove” as to “get rid of, as though by moving; to eradicate; to eliminate.”

“Thus, in the context of the easements’ language as a whole, ‘remove’ should be given a broad definition, including the moving and the elimination or eradication of trees, limbs, underbrush, and other obstructions,” the opinion stated.

The Court noted the author of the 1948 easements may not have contemplated the use of herbicides, but the Court has made clear though prior decisions that an easement holder can use modern inventions to carry out the rights granted in an easement, unless those are specifically prohibited by the text of the easement.

“And nothing in the text restricts or prohibits the use of herbicides as a method of removing obstructions,” the Court concluded.

Dissent Disputed Right to Herbicide Use
In her dissent, Chief Justice Kennedy agreed that common meanings of the word “remove” include getting rid of “as though by moving; to eradicate; to eliminate.” However, she wrote the key issue is whether Ohio Edison would actually remove vegetation if it used herbicides.

The dissent cited testimony from employees of Ohio Edison’s parent company, First Energy, who explained the Corders’ property had not been cut since 2014, and that brush was starting to regrow because it was not sprayed with herbicides. The employees noted the herbicides are used to prevent the growth and regrowth of plants.

“If the stems, stumps, or roots remain in the easement, then they cannot be said to have been removed,” she wrote.

The easements’ “right to trim, cut and remove” does not grant the company the right to use herbicides to inhibit or prevent future growth of vegetation,” the dissent concluded.

2023-0216. Corder v. Ohio Edison, Slip Opinion No. 2024-Ohio-5432.

View oral argument video of this case.

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