COLUMBUS — The fate of the Davis-Besse nuclear power plant east of Toledo has again been thrown into doubt as questions over a referendum on Ohio’s new nuclear bailout law remain unsettled, the plant’s owner told the state’s high court this week.
FirstEnergy Solutions said new litigation over the constitutionality of Ohio’s referendum petition process has only made it that much more critical that the Ohio Supreme Court acts swiftly to settle the separate question of whether the law is subject to voter referendum in the first place.
In its court filing, it said delays in answering that question would result in “forcing FES to once again revert to a path of decommissioning both Davis-Besse and Perry. Time is of the essence if these carbon-free facilities are not going to be forced to close out of nothing more than delay in answering the question of whether (House Bill 6) is even subject to a referendum.”
The state’s high court previously had refused to put FES’ lawsuit on an expedited schedule, noting that the vote, if it should take place, would not occur until November, 2020. But since then a federal judge has placed several questions in the laps of the state justices about whether restrictions lawmakers have placed on the signature-gathering process violate the Ohio Constitution.
While the law guaranteeing the two nuclear plants $150 million a year already has taken effect, it still up in the air as to whether FES would get its first payment in 2021.
“Delaying a decision on the effectiveness of H.B. 6 until the November, 2020 elections — or potentially much longer given the federal litigation — may sound the death knell for Ohio’s nuclear source of electricity,” FES’ suit reads.
The utility plans to refuel a third of Davis-Besse in February, a process that it said will cost it more than $95 million. FES can’t make a decision on whether to proceed with refueling absent knowing that “the financial lifeline” of House Bill 6 will be there, the suit contends.
The high court has given opponents of the law until Nov. 5 to respond as to FES’ latest argument to fast-track the case.
The FES lawsuit filed with the state court contends that the surcharge on retail electricity customers’ monthly bills to support the plants amounts to a tax and, therefore, is not subject to voter referendum.
The law itself does not call it a tax, and legislative supporters of the law have gone out of their way to say it was not a tax. But FES argues opponents of the law characterized it as one in their testimony before lawmakers.
The consumer surcharges would fuel a $170 million-a-year fund, of which 88 percent would go to the two nuclear plants and 12 percent to five large solar fields.
Ohioans Against Corporate Bailouts, the group behind the referendum effort, admitted last week that it failed to collect the minimum of 266,000 valid signatures of registered voters to put the law before voters. It at least partly blamed a requirement in state law that summary language to be shown to would-be petition signers must first get approval from the attorney general, a process that it said cost it 38 of the 90 days it had to collect signatures.
The group sued in federal court, claiming that requirement had the effect of violating its First Amendment right to political speech. The judge, however, punted the issue to the state Supreme Court, asking it to first decide whether the petitioners are entitled to a full 90 days of signature-gathering under the Ohio Constitution.
The state court’s answer could determine whether the federal judge will give the group more time to complete the referendum process.
Davis-Besse, near Oak Harbor and Perry east of Cleveland, had been initially scheduled for decommissioning in 2020 and 2021, respectively, because they’ve been unable to compete economically with cheaper natural gas. Together they directly employ about 1,400 people.
First Published November 1, 2019, 4:05 p.m.
