Ohio high court races will decide future of state’s energy transition and utility fairness

This fall’s election for three seats on the Supreme Court of Ohio is expected to play a pivotal role in deciding the state’s direction on renewable energy, utility accountability and other energy issues.

In addition to deciding appeals from lower courts dealing with energy and other topics, the seven-member Supreme Court of Ohio hears all challenges to cases from the Public Utilities Commission of Ohio and Ohio Power Siting Board. The commission broadly decides what utilities can do and how much they can charge ratepayers, while the siting board approves where energy generation and other infrastructure get built.

Judicial candidates do not campaign on issues, so voters won’t have a full picture of how they are likely to rule on energy-related cases. However, endorsements, campaign contributions, and a handful of decisions by incumbents offer some clues. 

The Ohio Environmental Council Action Fund has endorsed all three Democratic candidates — Michael Donnelly, Melody Stewart, and Lisa Forbes. Donnelly and Stewart are incumbents seeking another six-year term. Forbes is an appellate judge in Cuyahoga County, which includes much of greater Cleveland.

Meanwhile, the Ohio Oil and Gas Association and NiSource have given money to the campaigns of all three Republicans —Joseph Deters, Dan Hawkins, and Megan Shanahan. American Electric Power also gave money for Shanahan’s and Deters’ campaigns, data compiled by Open Secrets show. 

Deters was appointed by Gov. Mike DeWine last year to fill a partial term and is challenging Stewart for a full term. Hawkins and Shanahan are trial court judges in Franklin and Hamilton Counties, respectively. 

Ideally, party jurisdiction should not matter when candidates run for judicial office, said Heidi Gorovitz Robertson, a law professor at Cleveland State University. And some past energy rulings have been unanimous, including a 2021 ruling reversing a PUCO decision favoring a FirstEnergy affiliate while Sam Randazzo was chair. 

Starting in 2022, however, a new state law added party affiliations on fall election ballots for appellate court judges. Republicans hold a 4-3 majority on the Ohio Supreme Court, but that balance could flip depending on the outcome of this election.

These are some of the energy issues the new court is likely to take up in the coming years:

Who gets the biggest say in where solar farms are built?

The Ohio Supreme Court still has to hear oral arguments and then decide solar farm siting cases for the Kingwood Solar and Birch Solar projects. Supporters of the projects argue the Ohio Power Siting Board acted unlawfully by treating the volume of local opposition as a deciding factor, rather than considering whether the substance of the objections outweighed other factors supporting the projects.

“How the judges approach those questions is going to have a big impact on how renewable energy projects move forward in this state into the future,” said Chris Tavenor, an attorney speaking on behalf of the Ohio Environmental Council Action Fund.

If the court sides with the siting board, it could give local opposition groups more sway in project siting than a 2021 law already grants to county governments. The result could further empower groups with links to fossil fuel interests, which sometimes stoke fears about renewable power to build opposition.

The Kingwood case docket includes a friend-of-the-court brief filed on behalf of the Ohio Senate’s Republican majority, which was written as if it came from the whole Ohio Senate. Ohio Attorney General Dave Yost then moved to strike a separate brief filed on behalf of the seven Democrats in support of the project. An August 7 ruling denied Yost’s motion, but Deters dissented and would have denied the Democratic Caucus a say in the case.

How long can regulators make developers wait for decisions?

Another case, Moraine, presents ongoing questions about the timing of Supreme Court appeals. In Moraine, the court let an energy consulting company appeal several PUCO decisions about out-of-state renewable energy credits, in essence taking the commission to task for delays in deciding the company’s request for it to reconsider the rulings. 

The court’s August 27 procedural ruling said the PUCO can’t avoid its legal duty to rule on rehearing requests within 30 days by giving itself more time. Donnelly agreed with the ruling, Stewart dissented, and Deters didn’t take part.

On one hand, the ruling should speed up renewable energy cases and maybe let developers get projects built more quickly. The ruling should also shorten how long consumers may have to pay contested charges that may ultimately be ruled unlawful.

On the other hand, the ruling on timing represents a shift in the law. The Ohio Power Siting Board’s arguments in an earlier Kingwood Solar appeal were very similar to those the PUCO made in the Moraine case. Yet in September 2023, six judges, including Donnelly, Stewart and Deters, agreed to dismiss the earlier Kingwood Solar case.

On September 4, the PUCO held the new Moraine ruling means rehearing requests in other cases were denied by law and suggested the time for any appeal has passed. An October 2 ruling repeated that position. 

“Instead of embracing the court’s pro-consumer ruling, the PUCO is undermining it,” said Ohio Consumers’ Counsel Maureen Willis.

Will utility customers ever get refunds for unlawful riders?

An AES Ohio case aims to block more than $150 million in refunds for allegedly unlawful “stability charges” that the PUCO said would be refundable “to the extent permitted by law.” The utility had gone back to the old subsidy rider after a later one was ruled unlawful. 

AES is also trying to use the August 27 Moraine ruling to say the Ohio Consumers’ Counsel missed its opportunity to appeal in any event. 

“AES’s latest move to avoid giving refunds to its 500,000 consumers should meet with sound defeat,” Willis said. “To protect consumers, the court should proceed to oral argument and allow justice to run its course.”

The case will test the limits of language about refunds in a 2019 case, which held FirstEnergy’s so-called distribution modernization rider was unlawful. Donnelly’s opinion there said no refund was available for the money already paid, because the PUCO hadn’t made the rider refundable. Stewart was among the judges who agreed.

What penalties will FirstEnergy face for its role in Ohio’s HB 6 scandal?

A review of those rider charges is now among four FirstEnergy cases before the PUCO relating to the ongoing House Bill 6 corruption scandal. An evidentiary hearing on another of the cases dealing with corporate separation is set to start this month. The rider review and the other three cases will likely have hearings next year.

Hundreds of millions of dollars are at stake. Charges in at least one case may be refundable through future bill adjustments. And even if consumers don’t get refunds in the other cases, FirstEnergy could be liable for penalties. So, some or all of the cases will likely end up at the Ohio Supreme Court.

Deters recused himself from a case last year in which the court let the Ohio Attorney General’s office seize assets of former PUCO chair Sam Randazzo. Although the notice didn’t say why, Deters previously worked with lobbyist Matt Borges, who was convicted last year on federal criminal charges related to HB 6. Deters also has sat out several appeals from the PUCO, where his brother is a commissioner. 

Will drilling continue to be allowed under state parks and wildlife areas?

Natural gas cases could also end up at the Ohio Supreme Court. One case challenges the constitutionality of a 2023 law that labeled natural gas “green energy” and jump started regulatory action to allow drilling and fracking under state parks and wildlife areas. Briefing ended last year. The trial court has not yet made its decision.

Another case seeks to challenge instances in which the Ohio Oil and Gas Land Management Commission decided to solicit bids to lease areas under specific state parks and wildlife areas for drilling and fracking. The trial court dismissed the appeals in February. The case is currently on appeal.

Whether either case goes to the Ohio Supreme Court isn’t a foregone conclusion. Much will depend on how the courts rule, said Megan Hunter, an attorney with Earthjustice who represents several environmental groups in the cases.

Judging the judges

Common Cause encourages voters to Judge the Ads for court candidates with a skeptical eye. Watch for emotional framing. And question claims that may be inaccurate or taken out of context. Also note which groups pay for those ads, Common Cause advises: Question who is behind those groups and what they may stand to gain.

Just as importantly, listen carefully to the candidates. “Focus on judges who are talking about principles of fairness and upholding our democracy as an important aspect of how our state works,” Tavenor said.

“And really just pay attention to whether or not the judges are talking in partisan language versus nonpartisan language,” he added. “Our judges really shouldn’t be focused on the goals of political parties.”