COLUMBUS — A federal judge late Wednesday night refused to grant more time to a petition effort to give Ohio voters a chance to second-guess a new law bailing out two struggling nuclear power plants.
That means House Bill 6 will remain in effect to have consumers statewide subsidize the operations of FirstEnergy Solutions’ Davis-Besse plant near Oak Harbor and Perry plant east of Cleveland to the tune of $150 million a year.
U.S. District Court Judge Edmund Sargus, Jr. punted the dispute to the Ohio Supreme Court, determining that the challenges to the petition process raised by Ohioans Against Corporate Bailouts are state constitutional questions, not federal.
He denied the group's request for a preliminary injunction, finding that it was unlikely to succeed in its argument that the restrictions on the petition process violated its constitutional right of free political speech.
The group admitted falling roughly 40,000 signatures short of the initial threshold of 265,774 valid signatures of registered voters required by Monday’s deadline to keep the law from going into effect while it asked voters to repeal it.
It claimed state law requiring it to first get the attorney general to sign off on petition summary language to be shown to potential signers created a 38-day “blackout” period when it couldn’t gather any signatures.
"At the heart of plaintiffs' claims is proposition that the Ohio Constitution affords them 90 days to circulate a referendum petition, and that their First Amendment rights are violated by the statute because of the blackout period," Judge Sargus wrote. "But Ohio courts have not held whether the 90-day period is guaranteed for circulating or whether the required review of the attorney violates the Ohio Constitution.
"Moreover, the Ohio Supreme Court could afford plaintiffs the remedy they seek — a stay of H.B. 6 and additional time to circulate their petitions," he wrote.
The group argued that it was further hampered by an extremely well-funded opposition effort that aired ads urging voters not to sign the petition, claiming the referendum effort was a Chinese plot. It hired “blockers” to come between petition circulators and signers, launched a competing petition that had no legal standing to further confuse voters, and bribed paid circulators to switch sides or drop everything and go home.
The nasty fight was also unusual in that it occurred before a campaign had even begun and more than a year from when the question could have appeared on the November, 2020, ballot. None of the groups on either side of the issue have had to file reports indicating who is funding their efforts.
Unless the Ohio Supreme Court decides otherwise, the referendum window has closed and cannot be restarted through another petition.
Opponents of the law, however, could start anew to try to put a proposed constitutional amendment on the same ballot to undo the law. The deadline would be July, but the signature threshold would be much higher, costs would be much greater, and the same fierce opposition would likely be waiting.
"We're disappointed, but we're exploring our options with the Ohio Supreme Court," said Gene Pierce, spokesman for Ohioans Against Corporate Bailouts. It claims its effort involves competing energy interests like natural gas and renewable power as well as environmental groups that opposed passage of the law this summer.
The interests of the two opposition groups — Ohioans for Energy Security and Generation Now — have generally aligned with those of FES and its investors. The energy supplier has a suit pending before the state Supreme Court arguing that House Bill 6’s consumer surcharges cannot be subjected to referendum because they amount to a “tax.”
House Bill 6 would create a $170 million annual fund from 2021 through 2027, 88 percent of which would be earmarked for the two nuclear plants that together directly employ about 1,400 people. They’ve been unable to compete with cheap natural gas, and FES had planned to begin decommissioning them beginning next year.
The remaining $20 million would support five large solar field projects in Hardin County and southern Ohio.
The bill would also separately expand and extend until 2030 existing surcharges to support two 1950s-era, coal-fired power plants in southern Ohio and southeast Indiana owned by a multiutility corporation.
So that lawmakers could sell the measure as a net cost reduction to consumers, the law also eliminates or weakens existing mandates that utilities use more renewable power and reduce energy consumption overall.
First Published October 24, 2019, 3:17 a.m.
