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Supreme Court dismisses power plant lawsuit

By JIM PROVANCE • Updated Dec 2, 2019 at 2:30 PM

COLUMBUS — The Ohio Supreme Court threw out FirstEnergy Solutions’ lawsuit arguing that the recently enacted law bailing out its two nuclear power plants on Lake Erie cannot be subjected to voter referendum.

With just four of the seven justices participating, the court said there was no “justiciable controversy” for it to decide. The court issued no opinion.

FES had argued that the surcharges imposed on consumers by the law to fuel a $170 million-a-year fund — $150 million for the nuclear plants and $20 million for large-scale solar projects — amount to a tax and, therefore, could not be subjected to a referendum.

The law does not call the surcharge a tax, and lawmakers went out of their way during the debate to say that it was not. However, FES had noted that opponents of the law had referred to it as a tax during hearings.

“This decision correctly rejects FirstEnergy Solutions' argument that H.B. 6's billion-dollar bailout is not subject to referendum, one of many desperate and greedy FES maneuvers trying to deny Ohioans' right to vote on bad legislation,” said Gene Pierce, spokesman for Ohioans Against Corporate Bailouts, the group behind the so-far unsuccessful referendum effort.

“The argument was ridiculed from the first time it was aired in public, and this legal proceeding was a waste of the Ohio Supreme Court's time and taxpayers' money,” he said.

FES, however, saw “victory” in the court’s recognition that the referendum effort is indeed over.

“Those opposed to the bill were unable to gather the requisite number of signatures to initiate a referendum, therefore, there is no longer a need for the court to rule on the case,” it said in a statement. “H.B. 6 allows the Davis Besse and Perry nuclear plants to continue providing 90 percent of Ohio’s carbon free power, in addition to substantial employment and economic benefits for the state.”

As recently as Monday, the company had filed a brief with the court arguing that the issue cannot remain up in the air indefinitely while litigation continues in state and federal courts. It had warned that the uncertainty could cause it to reconsider its commitment to keep the Davis-Besse plant near Oak Harbor and Perry plant east of Cleveland operating.

Davis-Besse is due for an expensive refueling in January. The two plants directly employ about 1,400 people, but have been unable to compete economically with cheaper natural gas.

Ohioans Against Corporate Bailouts recently appealed a federal judge’s decision not to issue an injunction to give it more time to gather the nearly 266,000 signatures needed to put the law on ice pending a referendum vote that would be a year away.

The company disagreed with the position of Secretary of State Frank LaRose that the petition effort is over.

“In reality, the Committee’s referendum campaign is not over until the federal courts so determine a year or more from now—unless this Court decides this instant petition challenge on a timely basis that allows the Davis-Besse and Perry Nuclear Power Plants to survive,” its latest brief reads.

While the federal judge refused to issue an injunction, he did present the state Supreme Court with several questions that generally swirl around whether the Ohio Constitution guarantees such referendum efforts a full 90 days to gather signatures.

The Supreme Court has not decided yet whether it will answer those questions.

Ohioans Against Corporate Bailouts argues that the system was stacked against it, in particular the fact that it lost 38 of those 90 days working to get required approval from Attorney General Dave Yost on the accuracy of the summary language ultimately shown to would-be signature gatherers.

Chief Justice Maureen O’Connor was joined by Justices Sharon Kennedy, Michael Donnelly, and Melody Stewart in dismissing the case.

Justices Patrick Fischer, Judith French, and Patrick DeWine had recused themselves from considering the cases. Two defendants in the case who worked for the referendum effort had consulted on their past campaigns.


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