While much of the attention on this year鈥檚 races for the Ohio Supreme Court focuses on the state鈥檚 six-week abortion ban and gerrymandering, the election also comes with high stakes for state energy policy.
Several cases involving power plants, utility oversight, and clean energy development are likely to land before the state鈥檚 high court in the next two years. The seven elected judges will also review other rulings by the Public Utilities Commission of Ohio and the Ohio Power Siting Board, which determines where projects can be built.
Justice Sharon Kennedy, a Republican and the lone dissenting judge in August when the Supreme Court approved plans for the Great Lakes鈥� first offshore wind farm, is campaigning to become the court鈥檚 next chief justice. She is facing Justice Jennifer Brunner, a Democrat.
Justice Pat Fischer and Justice Pat DeWine (son of Gov. Mike DeWine), both Republicans, are seeking reelection against Democratic challengers Terri Jamison and Marilyn Zayas. Both challengers are currently appellate court judges.
Here are six questions the winners are likely to help decide after the election:
1. What hurdles can neighbors or groups put up to block renewable energy?
The Supreme Court of Ohio鈥檚 rulings will be 鈥渞eally pivotal鈥� in how renewable energy continues to develop in the state, said attorney Chris Tavenor at the Ohio Environmental Council.
One case where the group filed a deals with whether residents or groups can overrule a siting permit for the Emerson Creek wind farm in Erie and Huron counties. Objections to the permit aren鈥檛 based on evidence in the record, so the Ohio Power Siting Board properly rejected them, the environmental group argued. Oral arguments haven鈥檛 been scheduled yet.
The case bears some similarities to the 6-1 in which the court let a for move ahead. Brunner wrote the majority opinion. Kennedy wrote that the court should have given more deference to the appellants鈥� complaints.
2. What rules will govern siting for renewable energy?
The Ohio Power Siting Board is revising the rules on how it decides siting cases. Any challenges to the final rules would go before the state Supreme Court, Tavenor said.
The Ohio Environmental Council and others have called on the sitting board to weigh in its decisions. Additional comments in the call for consistency in how the board defines the public interest. One issue is whether the board must weigh the evidence for or against complaints by members of the public, rather than just counting up how many people speak out for or against a project.
The weight given to comments was an issue last year when the board denied a permit for the project. Arguments raised by local groups and residents in that case were , the developer argued. Nor were dozens of people offering those comments subject to cross-examination at an evidentiary hearing.
3. Will ratepayers recover money for the alleged House Bill 6 corruption?
The Public Utilities Commission has in four FirstEnergy cases linked to Ohio鈥檚 HB 6 corruption scandal for six months, after a federal prosecutor鈥檚 request to pause during a federal investigation. All of the cases could eventually go up to the Ohio Supreme Court because of the money involved and the cases鈥� high profile.
In one case, the commission ordered FirstEnergy to show that it did not use ratepayer money to. Another case deals with whether FirstEnergy violated Ohio鈥檚 law requiring between utilities and affiliated corporations. A 2021 noted multiple violations, as well as a chunk of missing documents.
A third case deals with how money was used from a no-strings-attached that the Supreme Court of Ohio held in 2019. DeWine concurred in the judgment only. Fischer and Kennedy would have let FirstEnergy continue to collect the money.
Subsequent audits have found that FirstEnergy did not properly track roughly $456 million it collected from ratepayers from 2017 through 2019. Parties in the PUCO case have since asked the commission to on FirstEnergy that could not only recover that amount, but triple it to about $1.4 billion.
The fourth deals with a separate 鈥渄elivery capital recovery鈥� rider where an found millions of dollars had been improperly charged to ratepayers. The amount included payments to businesses run by Cleveland-area entrepreneur. More information about George came out in from Tracy Ashton, an assistant controller at FirstEnergy, in shareholder cases earlier this year.
4. Have ratepayers been overcharged for two 1950s-era coal plants?
Other Public Utilities Commission cases involve audits for coal plant subsidies that the commission allowed before HB 6. include whether ratepayers should have to cover costs when the two plants owned by the Ohio Valley Electric Corporation ran full-tilt, even when it was uneconomic for them to do so, said Kim Bojko, an attorney representing the Ohio Manufacturers' Association Energy Group. The recovery of capital costs is also an issue.
With millions of dollars at stake, the outcome of the cases will likely be appealed to the Ohio Supreme Court. The stakes are even higher because Ohio lawmakers subsequently made the Ohio Valley coal plant subsidies part of state law when they enacted HB 6. Although lawmakers eliminated the nuclear plant subsidies last year, bills for a full repeal or for a repeal of the coal plant subsidies have in the General Assembly.
5. How much more will Ohioans pay for utilities?
Ohio鈥檚 high court hears appeals from utilities commission cases involving ratemaking and riders. Parties鈥� requests have been millions of dollars apart in a case where seeks a $212 million rate hike, for example.
Similarly, filed a rate case with the PUCO earlier this year. Unless the parties can settle, that case and others would likely go to the Ohio Supreme Court in 2024. Expect other cases for rate increases and riders to come before the court as well.
A related issue is how much the Supreme Court of Ohio should defer to the PUCO when some, but not all parties settle. Settling parties in such cases often get side deals that work to their benefit, said Ned Hill, an economist at Ohio State University who spoke at the Ohio Manufacturers鈥� Association Energy Conference on Sept. 8.
6. Will Ohio laws keep favoring utilities and fossil fuels?
Court rulings on redistricting also will affect energy policy by influencing the composition of the legislature. Gerrymandering in Ohio has already. Dozens of lawmakers who backed were reelected even after the scandal broke in 2020. Among them was former House Speaker Larry Householder, who was finally ousted from the Ohio House in June 2021.
Beyond questions of corruption, veto-proof majorities over the past decade have imposed additional hurdles to renewable energy development and limited steps to reduce fossil fuel emissions. One recent example is, which in 2021 imposed additional burdens on siting solar and wind projects that don鈥檛 apply to fossil fuel projects. Before that, HB 6 Ohio鈥檚 energy efficiency and renewable energy standards.
Yet favor a requirement that 20% of the state鈥檚 electricity come from renewable sources, from the Yale Program on Climate Change Communication show. And majorities in all Ohio counties also favor regulating carbon dioxide as a pollutant.
Judge for yourself
Appellate judge candidates this year will have their party affiliations listed on the fall ballots for the first time 鈥� a that was opposed by Common Cause Ohio, Ohio Fair Courts Alliance, Ohio State Bar Association and various other groups.
Jen Miller, executive director at the League of Women Voters of Ohio, encourages voters to read candidates鈥� profiles at. Additionally, provides nonpartisan ratings for Ohio Supreme Court candidates and judicial races in Cuyahoga County.
Beyond that, 鈥渇ollowing the money 鈥� looking at the money that鈥檚 going to the candidates for the Ohio Supreme Court can give you a picture of who these candidates are,鈥� said Catherine Turcer, executive director of Common Cause Ohio. also provide clues about how groups think candidates will act once in office, she said.
Money in judicial races also can create potential conflicts for judges, said attorney Douglas Keith at the Brennan Center. And judges often do a poor job of recognizing when they may have a bias on an issue, he added.
and , the parent company of Columbia Gas, have given amounts ranging from $2,500 to $5,500 to campaigns for Kennedy, Fischer and DeWine. and also got $1,000 in donations from the . The Ohio Oil & Gas Producers Fund gave $500 to campaign.
Additionally, the had nearly $1.9 million on hand as of Aug. 31. Historically, the company has supported , , and , according to Open Secrets鈥� FollowTheMoney.org data.
Beyond that, the Ohio Chamber of Commerce set a goal of raising $4 million for Ohio鈥檚 high court races, according to reports by and the. And the Republican State Leadership Committee is reserving $2 million for Ohio鈥檚 high court races, reported. Neither the Chamber nor the Republican State Leadership Committee has responded to repeated requests for comment. Both groups have endorsed Kennedy, DeWine and Fischer.
Voters can expect a barrage of political ads in the final weeks before the election, Turcer said, and she warns voters to be skeptical. 鈥淚f you can鈥檛 follow the money prior to casting a ballot, that transparency is happening too late,鈥� she said.
This story is a joint project of the nonprofit and , the nonprofit, nonpartisan Ohio Center for Journalism. Please join the free mailing lists for or the , as this helps provide more public service reporting.