The Ohio Senate, led by Senate Republicans, are trying to usurp the judicial branch’s independence and change the meaning of laws outside of the legislative process.
Date: 2/13/2024
Legislative Background: the enactment of SB 52 changes solar siting rules but does not touch
the definition of “public interest”.
Ohio’s 134th General Assembly enacted into law SB 52, which amended some of the sections
on siting Ohio power generation. This law gave local elected officials two new powers in large
scale renewable energy siting before the Ohio Power Siting Board (OPSB): (1) County
Commissioners can create renewable energy restricted areas for any future utility scale
renewable energy projects (an amendment to ORC 303.58) and (2) County Commissioners and
Township Trustees can each appoint one ad hoc voting member to the Ohio Power Siting Board
for any project proposed in their area (an amendment to ORC 4906.02). These changes only
apply to renewable energy projects.
While SB 52 gave local elected officials new powers in the siting process, it did not change the
eight (8) qualifications an energy developer must meet to build a power generation station in
Ohio, including the “public interest” requirement in ORC 4906.10(A)(1).
OPSB Policy Changes After SB 52: extreme deference to local opposition
Following the legislature’s enactment of SB 52, the Ohio Power Siting Board began interpreting
a different law controlling the siting of all energy projects differently. The Board started giving
much more weight to local opposition near a proposed project under the legal requirement that
a proposed project serve the “public interest” in ORC 4906.10(A)(6).
Supreme Court appeals: the Supreme Court will now decide whether the OPSB’s change in
policy correctly applies the law
Some solar developers have started appealing the Ohio Power Siting Board’s denial of their
applications based solely on local opposition to the project to the Supreme Court of Ohio. The
first case the Supreme Court will decide is Birch Solar, Case No. 2023-1011. The second case
in line is Kingwood Solar, Case Number: 2023-1286.
Briefing has completed in the Birch case and briefing in Kingwood Solar will end on February
27, 2024. The Supreme Court will order oral arguments for both cases and then make a final
decision.
These appeals come after the Ohio Supreme Court’s most recent jurisprudence on “public
interest” have rejected arguments that local opposition is dispositive in renewable energy siting.
In a 2023 wind case, In re Application of Firelands Wind, L.L.C., the court reviewed a project
approved by the Ohio Power Siting Board despite significant local opposition. In that case,
Justice DeWine noted “public interest, convenience, and necessity” is inherently an
“open-textured” issue which vests a “degree of discretion in the administrative agency.”1 The
Supreme Court’s role is to determine whether the Board’s decision was unreasonable. If the
court endorses a position that tells the Board to deny projects based solely on “voluminous”
opposition, the Board would lose its role in intensely scrutinizing the benefits and costs of each
project, utilizing its staff’s expertise.
The Ohio Senate’s attempts to Influence the Judicial Branch outside of its lawmaking role:
The Ohio Senate did not file any written arguments in the first case to come before the court,
Birch Solar, but filed an amicus brief before the Supreme Court of Ohio in support of local
opposition to Kingwood Solar on February 7, 2024. The Senate stated in a footnote that its
arguments in this Kingwood case should apply to the Birch case, in which it did not participate.
This Amicus Brief is the legislature’s improper attempt to influence another independent branch
of Ohio government: the judicial branch. The Senate’s brief specifically states that SB 52 did
nothing to change the language in the public interest prong in ORC 4906.10(A)(6). Now it wants
to go back and argue that SB 52 should change language it originally left untouched. This is an
overstep of the legislative branch’s role and an improper attempt at influencing an
independent branch of government.
The Senate makes a brazen argument that SB 52 should give local elected officials a de facto
veto over proposed large scale renewable energy projects, rather than just the one ad hoc vote
it originally granted in SB 52. Senator McColley is quoted arguing the only relevant factor in
determining a project’s public interest, convenience, and necessity are the opinions of local
elected officials like township trustees, and “in some cases” county commissioners. However,
this statement is well beyond the policy intentions of SB 52. If SB 52 was intended to give these
local elected officials veto power over a project, it could have done that. Instead, it gave them
one ad hoc voting member on a Board of many voting members. If it wanted to change the way
the Supreme Court has interpreted the public interest, it could have amended the language in
that section of the law. However, SB 52 made none of these changes.
The Senate’s actions to retroactively change the language of SB 52 and ORC 4906.10(A)(6) outside of the legislative process is bad policy and bad for Ohio’s democracy, which functions on 3 independent branches of government.
What’s Next:
Birch Solar’s Current Timeline:
8/11/2023 Appeal Filed: Birch Solar 1, LLC (“Birch Solar”) appeals to the Supreme Court
of Ohio arguing the Ohio Power Siting Board incorrectly denied its application to build a
solar farm.10/20/2023-10/23/2023 Appellant’s brief: Birch Solar, the Ohio Chamber of Commerce,
Natural Resources Defense Council, the International Brotherhood of Electrical Workers
Local Union 32, the American Clean Power Association, MAREC Action, the Utility Scale
Solar Energy Coalitions of Ohio, the Ohio Environmental Council, the Ohio
Manufacturers’ Association, the Ohio Independent Power Producers, and the Allen
Auglaize Coalition for Reasonable Energy all file briefs in support of the appeal.12/08/2023-12/11/2023 Appellee’s brief: The Ohio Power Siting Board and three local
government entities file briefs supporting the OPSB’s decision. Three additional local
government entities file a brief supporting neither side.1/19/2024-1/22/2024 Reply brief: Kingwood Solar and four amicus curiae file reply briefs.
Oral argument date unknown
Date of Supreme Court decision is unknown
Kingwood Solar’s Current Timeline:10/11/2023 Appeal Filed: Kingwood Solar I, LLC (“Kingwood Solar”) appeals to the
Supreme Court of Ohio arguing the Ohio Power Siting Board incorrectly denied its
application to build a solar farm.12/19/2023 appellant’s brief: Kingwood Solar, the International Brotherhood of Electrical
Workers Local Union 82, the Ohio Chamber of Commerce, and Ohio Independent Power
Producers all file briefs in support of Kingwood’s appeal.2/7/2024 appellee’s brief: The Ohio Power Siting Board, several government bodies
surrounding the proposed Kingwood Solar project, and the Ohio Senate file briefs
opposing Kingwood’s appeal.3/18/2024 reply briefs are due: Supreme Court Rule of Practice 16.04 requires
appellants to file reply briefs twenty (20) days after appellees and amicus parties file their
briefs. Rule 16.06 gives parties wishing to file an amicus the same twenty (20) day
timeline for reply briefs as appellants.Oral argument date unknown
Date of Supreme Court decision is unknown
1 Justice DeWine also noted that an agency’s decision is unreasonable “when the decision is manifestly
contrary to the evidence in the record or when the evidence clearly isn’t enough to support the decision.”
In Birch, the Ohio Environmental Council argued in an amicus brief that the Board did not actually
consider the evidence, instead substituting the quantity of opposition in place of a required interrogation of
the substance of the opposition’s claims.