Federal Judge Rejects Ohio Anti-HB6 Effort's Request for More Time to Gather Signatures

Ohioans Against Corporate Bailouts didn't meet an Oct. 21 deadline to gather the 265,774 petition signatures it needs to land a repeal of a controversial energy law on next year's ballot. But the Ohio Supreme Court could weigh in.

First Energy Solution's Perry Nuclear Generating Station near Cleveland - Wikipedia
First Energy Solution's Perry Nuclear Generating Station near Cleveland

For legislation that has already passed the Ohio General Assembly and gotten the governor's signature, House Bill 6 — the so-called energy bailout bill — sure has taken a winding road in its afterlife as law.

The latest chapter: A federal judge has rejected a request by anti-HB6 group Ohioans Against Corporate Bailouts for more time to gather the 265,744 valid signatures it needed to land on the statewide ballot next year to repeal the law, which adds charges to Ohioans' electric bills to prop up two nuclear plants and two coal plants while scrapping some renewable energy standards in the state.

OACB missed an Oct. 21 deadline to submit those signatures, falling 44,000 short, but it says that's because it experienced interference from pro-HB6 groups and had to wait 38 days for the state's attorney general to approve its petition language. 

But that may not quite be the end of the story. The anti-HB6 group could see the Ohio Supreme Court assess some of its claims.

(Need to know more about HB6? Read this.)

U.S. District Judge Edmund Sargus Jr. issued a ruling late Wednesday evening rejecting OACB's request on the grounds that it wasn't in the federal court's jurisdiction and that the group's First Amendment claims were not likely to succeed at trial. Sargus, however, also passed along to the Ohio Supreme Court five questions at the heart of the group's request around what the 90-day period for petitions actually requires. The court could decide to take up all, some or none of those questions. In the meantime, parties have 20 days to submit written arguments to the court.

“We look forward to making our case to the Supreme Court that the petitioning 'blackout' period is an unfair infringementon our constitutional right to referendum,” OACB spokesperson Gene Pierce said in a statement. "Ohioans deserve the opportunity to vote on House Bill 6, and the despicable campaign by supporters of the bill to prevent that should not be rewarded."

OACB pins its shortfall on "dirty tricks" by pro-HB6 groups and on what it calls an unconstitutional requirement that groups seeking petition signatures have the language of their petitions approved by the Ohio Attorney General's office prior to collecting signatures. Ohio AG Dave Yost rejected the group's first draft of its petition language on the grounds that it was misleading. 

OACB's request sought a temporary injunction against Ohio Secretary of State Frank LaRose that would have granted the anti-HB6 group another 38 days — the time the group says it lost complying with the approval requirement — to collect signatures.

LaRose cheered the judge's ruling in a statement, as did pro-HB6 groups.

“The court rightly recognized that Ohio’s long-standing referendum process justly adheres to the First Amendment," that statement read. "This is a clear win not just for Ohio, but for judicial restraint and federalism.”

HB6 has been controversial. An unusual combination of fiscal conservatives, oil and gas companies, environmental groups and others have decried the $150 million per year between 2021 and 2027 ratepayers would provide to First Energy Solutions, a bankrupt subsidiary holding two nuclear power plants — Perry Nuclear Power Plant outside of Cleveland and Davis-Besse Nuclear Power Station outside of Toledo — owned by Akron-based parent company First Energy Corp. That monthly surcharge will cost users between 85 cents for some residential customers and $2,400 for the state's largest industrial users.

First Energy says without the subsidy, the plants will go bankrupt, though First Energy has not supplied lawmakers with particulars about the financials of the plants and there is some dispute about their financial precarity. Other experts who watch the industry, however, have said that the plants probably are in financial distress, pointing out they are often passed over on bids to provide energy on what is called the regional capacity market — that is, contracts to provide extra energy as needed. Ohio's nuclear plants haven't been able to match prices from renewable energy and natural gas plants of late in that market.

Another $1.50 a month from residential customers and up to $1,500 per month for commercial users will go to provide $20 million a year to the coal plants, which are run by the Ohio Valley Electric Corporation. Those plants provide power in mostly rural areas and are also floundering financially, OVEC says.

But fear not, the mostly Republican lawmakers who approved HB6 say — the law will actually save ratepayers money and will raise about $20 million for solar energy in Ohio. It does so, however, by significantly reducing the amount of renewable energy power providers would be required to generate up to 2026, when the requirements would be eliminated entirely. The law would also eliminate energy efficiency mandates next year.

Those decade-old mandates are responsible for about $4.75 on the average ratepayer's monthly bill, the law's supporters say. Getting rid of the mandates, they say, will save ratepayers more than $3.75 a month on their bills by 2027. 

Environmentalists, however, say that is misleading and point to research from Ohio State University and elsewhere showing that those renewable energy and energy efficiency mandates over time reduce energy costs — as well as cut carbon emissions that contribute to climate change.  

The interaction between referendum petitioners seeking to get signatures to challenge HB6 and those hired to oppose them has at times gotten heated. After multiple reported incidents of so-called "petition blockers" acting aggressively toward those gathering petitions surfaced, Ohio Attorney General David Yost late last month warned that the "blockers" could face prosecution unless they "knock it off."

“We have anecdotal evidence that there have been instances where it’s actually escalated,” Yost said during a news conference regarding reports of interference. “One instance where someone may have been struck, another instance where people may have been surrounded by multiple petition blockers, another instance where maybe there was somebody who was followed into another town.”

The controversy intensified Oct. 5, when Yost acknowledged that his office is looking into reports from Ohioans Against Corporate Bailouts that pro-HB6 petition blockers have offered to purchase signed anti-HB6 referendum petitions from those paid to collect them. That's a fifth-degree felony in Ohio. Yost's office has said that, for now, those reports are "rumors." 

Ohioans for Energy Security representatives have denied those paid by the group have engaged in wrongdoing. 

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