This coverage is made possible through a partnership with WABE and Grist, a nonprofit, independent media organization dedicated to telling stories of climate solutions and a just future.

In a case that could impact other lawsuits on voting rights, Black voters who sued over Georgia’s elections for key utility regulators are appealing their case to the U.S. Supreme Court. 

Those elections for the Georgia Public Service Commission, or PSC, have been on hold for years and while last week a federal appeals court lifted an injunction blocking the elections from taking place, there is little chance the elections will happen this year. 

Public Service Commissioners have enormous sway over greenhouse gas emissions because they approve how electric utilities get their power. They also set the rates consumers pay for electricity. 

In Georgia, the commissioners have to live in specific districts. But unlike members of Congress who are only elected by residents of their district, the Georgia commissioners are elected by a statewide, at-large vote. A group of Black voters in Atlanta argued in a lawsuit that this violates Section 2 of the Voting Rights Act because it dilutes their votes, preventing them from sending the candidate of their choice to the commission.

In one example the plaintiffs cited, the former commissioner for District 3, which covers Metro Atlanta, “was elected to three terms on the PSC without ever winning a single county in District 3.”

That commissioner — along with four of the five current commissioners — is a white Republican. Georgia’s population is one-third Black, with a much higher proportion in District 3. Georgia voters elected Democrat Joe Biden and two Democratic U.S. Senators in 2020, and Atlanta voters tend to choose Democrats for seats ranging from mayor and city council to U.S. Congress.

A federal judge agreed with the plaintiffs in 2022 and suspended PSC elections until the state legislature could devise a new system. However, in November 2023, the 11th U.S. Circuit Court of Appeals reversed that decision.

The appeals court ruling took issue with the proposed fix of single-member district elections, arguing a federal court can’t overrule the state’s choice to hold at-large elections because it would violate the “principles of federalism.”

“It’s kind of an upside-down view,” said Bryan Sells, one of the lawyers for the plaintiffs. “What the 11th Circuit’s ruling says is that Georgia is allowed to discriminate against Black voters.”

The plaintiffs are asking the U.S. Supreme Court to overturn the appeals court decision, though there’s no guarantee the Supreme Court will take up the case.

In their petition for Supreme Court consideration, the plaintiffs argue that if it’s upheld, the appeals court decision “would upend decades of settled law and have a cascading effect far beyond the reach of this case.”

“[The appeals court panel] simply decided that whatever rationales Georgia might tender for the at-large scheme…automatically trump any amount of racial vote dilution, no matter how severe,” the petition argues. “If a State’s interest can prevail in this case, there is no case in which it won’t.”

The Georgia secretary of state’s office declined to comment on the appeal.

In the meantime, PSC elections have been on hold since 2022, when the federal judge who found for the plaintiffs imposed an injunction blocking the secretary of state from holding or certifying those elections. The 11th Circuit issued an order last week lifting the injunction, though its effect was not immediately clear.

Sells and a spokesman for the secretary of state’s office both said they were reviewing the order. In a text message, Sells also expressed surprise at what he called “the court’s unilateral action that no one asked for.”

Under the injunction, elections for two PSC seats that were scheduled for November 2022 were canceled. Despite not facing voters, those commissioners continue to serve and vote on PSC decisions, including rate increases and the three new fossil fuel-powered turbines the commission just approved. 

PSC elections are also not on the 2024 ballot. A third commissioner’s term will expire at the end of the year.   

A bill that passed the Georgia General Assembly before the Supreme Court appeal was filed or the injunction was lifted lays out a schedule for elections to resume, still following the current model of statewide voting. Governor Brian Kemp signed it into law last week.

The law schedules those elections to begin in 2025.

How should Georgia elect its utility regulators? The U.S. Supreme Court is asked to weigh in is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

Virginia environmental advocates anticipated challenges to the state’s recent landmark legislation such as the Clean Economy Act and Clean Cars when the General Assembly’s regular session began in January.

What caught them off guard, however, was a measure to transfer substantial regulatory and permitting authority away from two citizen boards and to staffers at the state Department of Environmental Quality.

“We probably could have and should have guessed it was coming,” said Peter Anderson, Virginia policy director with Appalachian Voices. “We certainly didn’t get a heads up.”

The State Air Pollution Control Board and the State Water Control Board are each made up of seven vetted citizens appointed by the governor.

Republican Gov. Glenn Youngkin is likely on the verge of signing Senate Bill 657, which arose after the air board last year denied a permit affiliated with the Mountain Valley natural gas pipeline.

Senators, where Democrats maintain a 21-19 majority, gave the bill resounding support with a 32-8 vote. The 51-47 House of Delegates vote on the bill fell more along party lines in a chamber with a 52-48 GOP majority. 

Conservation and clean energy groups were united in their opposition to SB 657.

This is the sixth legislative session Anderson has spent tracking and shaping environmental policy in Richmond. The 41-year-old Charlottesville resident earned a law degree at George Mason University. 

In this interview with the Energy News Network, Anderson explains the origin of the two watchdog citizen boards and how this new legislation will affect environmental decision-making in the state. This interview was lightly edited for clarity and length.  

Q: First, let’s talk briefly about the history of the State Air Pollution Control Board and the State Water Control Board. Why and when were they created? 

A: It was in the early to mid-1990s when the citizen element was injected into both boards. The idea was to have a safeguard in the form of additional citizen oversight to prevent industry capture of environmental regulations.

However, the boards were created by statute in the 1960s or ’70s. That was in response to a federal suite of environmental regulations. Virginia started to have a state version of the U.S. Environmental Protection Agency and that agency was referred to as the board. That professional staff became the Department of Environmental Quality.

What’s confusing about reading Virginia environmental law is that you see early references to the board and don’t know if it’s the citizen board or the agency.

Q: Now, fast forward from the 1990s to 2008. How did legislation that year reshape the air and water citizen boards?

A: It established parameters on public hearings, notices, comments and participation in decision-making on permits. It included the language about a citizen board being able to make a decision on controversial permits where there was enough public interest to have a hearing.

Q: If signed into law, what changes will SB 657 make?

A: The bill repeals the section of the code added in 2008 that allowed the citizen boards to make final decisions on permits with significant public interest. Those were ones with enough interest to generate hearings.

The citizen boards will continue to exist, with seven members on each one. The boards still have the authority to vote yes or no on DEQ regulations, but they no longer have authority over controversial permits.  

Q: How quickly will this change occur?

A: If Gov. Glenn Youngkin signs Senate Bill 657, it would be law of land starting July 1.

Q: Is this the first time legislation has been proposed to limit the authority of citizen boards?

A: No, this is not the first time. Over the years, multiple bills have been introduced to take away their permitting authority or dilute them in some way.

Q: Do you have an idea what motivated Sen. Richard Stuart, R-Westmoreland, to introduce SB 657 this session? 

A: In his committee comments, Sen. Stuart alluded to the decision about the Lambert gas compressor station, affiliated with the Mountain Valley Pipeline, being part of his motivation.

The air board denied that permit in fall 2021 even though DEQ staff said the compressor station would be in compliance. 

This might be getting into the weeds, but the air board agreed with DEQ that Lambert was sited in an environmental justice community. But when DEQ said the compressor station would cause no disproportionate impact on that community, that is where the air board diverged from DEQ staff.

(Editor’s note: The proposed Lambert compressor station in Pittsylvania County, Va., would have pumped  hydraulically fractured gas into North Carolina through the 72-mile Southgate extension of the mainline Mountain Valley Pipeline.) 

Q: Is there any connection to the January 2020 decision by the Richmond-based 4th U.S. Circuit Court of Appeals to overturn the air board’s decision a year earlier to approve a permit for the Buckingham gas compressor station along the now-canceled Atlantic Coast Pipeline? 

A: In that decision, the Fourth Circuit Court treated the air board and the DEQ as one entity, saying Virginia had failed to determine if there was an environmental justice community in Buckingham County.

That had prompted DEQ to put together a regulatory advisory panel. This was agency staff trying to figure out how to comply with the state’s Environmental Justice Act and make decisions about suitability that wouldn’t be rebuffed by the court again.

Those discussions were pending in fall 2021 when the air board made its decision about the Lambert compressor station. 

Q: Proponents of SB 657 consistently state that key environmental decisions should be left to DEQ professionals, not citizen boards. What is your perspective?

A: The prevailing narrative this session was that board members had gone rogue and that they are amateurs when they should be professionals. 

But that’s not correct. The statute sets out specific qualifications for education and experience that board members have to meet. These folks have to fill out applications and go through a state approval process that includes vetting by the secretary of natural resources and the secretary of the commonwealth. 

This is not some Joe Shmoe you meet on the street making a decision that impacts a lot of people about which they have no knowledge.

Q: Have the boards indeed “gone rogue”?

A: Our colleagues at the Chesapeake Bay Foundation researched minutes of both the air and water boards over the last 20 years. Their findings are contrary to the idea that unqualified citizen board members are going rogue. 

The air board has denied one permit and it was for the Lambert compressor station. If you have one permit denial in 20 years, you’re probably doing it exactly right. An occasional disagreement probably means it’s a good thing the citizen board is there.

In the last 15 years, the water board had denied one permit. And they did that because the DEQ recommended they deny it.

Q: Proponents of SB 657 also have emphasized that some other states don’t have citizen boards, so why should Virginia?

A: When people don’t like the outcome, they find fault in the process.

We are lucky to have this structure because the boards are insulation against regulatory capture. We shouldn’t be removing that structure to be like other states. Other states should be copying Virginia because we are a leader.

Also, the states that don’t have citizen boards have an appeals process that can be handled through administrative law judges. Virginia doesn’t have that system.

Q: On a related note this session, House Bill 1261, introduced by Del. Robert Bloxom, R-Accomack, also proposed limiting the authority of citizen boards. Did it have a different twist and what happened to that measure?

A: In contrast to SB 657, which was 17 pages long, Bloxom’s bill was introduced as one page. It became a bill on how members of the air and water boards are appointed.

It eventually called for the House and Senate each pick two and the governor three for each board.

The environmental community actually prefers that all seven appointments stay with the governor. There’s some level of sunshine there because the members are vetted. Technically, we have a confirmation process because the General Assembly has to formally confirm the governor’s picks.

If Bloxom’s bill becomes law, we won’t have that level of sunshine. Who confirms House and Senate appointments? Board members are regulators and part of the executive branch. If the legislative branch is writing laws and choosing executors, isn’t there a separation of powers problem?

It’s to be determined on what will happen to that bill. It will be part of the special session when that convenes. There’s potential for a version of the bill to emerge.

Q: You mentioned earlier that grassroots organizations have expressed frustration trying to make their voices heard by the DEQ and citizen boards. Neither SB 657 nor HB 1261 addresses that issue. Can you elaborate on changes that might alter that dynamic?

A: Permit applicants don’t have barriers accessing the regulatory agency because they have an open dialogue that goes on for months. Yet the people who live with those permitted projects in their communities are allowed to submit one written comment and speak to the agency for three minutes, at best. Many times, they don’t even know about the project or the comment period.

I think we could do a lot better by having more dialogue with impacted communities and giving more weight to their input. Sometimes project developers host their own community meetings, but those are designed to achieve buy-in from locals. 

What we need is true collaboration between the agency and community members. Direct community engagement is far more valuable than the desktop demographic analysis that DEQ uses when it decides to engage in an environmental justice analysis. That will lead to better outcomes for both the impacted people and the businesses that want to locate in their communities. 

To protect themselves, their air, land and water, community members have to become experts, so they’re already starting with a significant imbalance as far as knowledge and power goes.

Q: What else should readers know?

A: What people should care about is that a process that was already imperfect because it was weighted toward the applicant has removed one more layer of public interest protection by cutting the citizen board out of the final decision.

They need to understand that someday a major project could be proposed that could impact your vacation home, the river you paddle on and fish in, or your favorite camping spot.

How a Virginia bill could upend the state’s unique citizen oversight boards is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

This story is from the Energy News Network in collaboration with Eye on Ohio, the nonprofit, nonpartisan Ohio Center for Journalism. Please join Eye on Ohio’s free mailing list or the mailing list for the Energy News Network as this helps us provide more public service reporting.

The Public Utilities Commission of Ohio should conduct a big-picture, in-depth review of FirstEnergy’s spending and governance in light of the company’s admissions last month about former PUCO Chair Sam Randazzo, critics say.

“It’s not a debate anymore whether the company engaged in corruption,” said Howard Learner, executive director of the Environmental Law & Policy Center. “The company did so. With this pervasive corruption, the PUCO needs to mind the store in order to protect the public interest and to protect consumers.”

On July 22, FirstEnergy admitted it used nonprofit entities “to conceal payments for the benefit of public officials and in return for official action.” A federal court filing on the same day details multiple interactions with and payments to former House Speaker Larry Householder, who faces criminal charges for an alleged $60 million conspiracy to pass and defend House Bill 6. That nuclear and coal bailout law gutted Ohio’s clean energy standards.

The federal court filing also details FirstEnergy’s dealings with Randazzo. The former PUCO chair helped shape HB 6, and his companies received approximately $22 million from FirstEnergy entities from 2010 through 2019. According to the filing, FirstEnergy increased those payments in 2015 in exchange for Randazzo having his longstanding client, Industrial Energy Users-Ohio, drop opposition to an earlier nuclear and coal bailout plan.

FirstEnergy paid the last $4.3 million shortly before Randazzo became PUCO chair in 2019. “In return, [Randazzo] would perform official action in his capacity as PUCO Chairman to further FirstEnergy Corp.’s interests,” the filing said. That included work on HB 6 and “other specific FirstEnergy Corp. legislative and regulatory priorities, as requested and as opportunities arose.”

Ohio Attorney General David Yost has now sought to add Randazzo, two of his companies, and former FirstEnergy executives Chuck Jones and Michael Dowling to a state court civil action. But questions remain about how FirstEnergy routed the money, what amounts may have come from ratepayers, and how to prevent future abuses.

“What’s really needed is a more comprehensive investigation — at least of FirstEnergy’s operations and spending related to these various corruption schemes in Ohio, which seem to fall most directly under the PUCO’s venue,” said Dave Anderson, policy and communications manager for the Energy and Policy Institute.

‘The taint of corruption’

Soon after Randazzo resigned from the Public Utilities Commission of Ohio last November, the Environmental Law & Policy Center asked the PUCO to conduct new proceedings in several FirstEnergy cases.

“FirstEnergy’s payment of $4 million to former Chair Sam Randazzo shortly before he took over as chair of the commission is simply wrong as a matter of law, wrong as a matter of fairness, wrong as a matter of common sense,” Learner said. “It tainted PUCO’s decision-making process and injected serious concerns of bias or at least the appearance of bias.”

In the wake of FirstEnergy’s admissions, the cases “should be reopened and reexamined to remove the taint of corruption,” Learner said.

Asked if the PUCO would reconsider that ruling or conduct a broader inquiry now, spokesperson Matt Schilling noted that the commission had already denied the Environmental Law & Policy Center’s motion on Dec. 30.

A FirstEnergy spokesperson declined to comment for this story. Neither Randazzo nor an attorney believed to represent him responded to requests for comment.

Former PUCO commissioner Ashley Brown, who now heads up the Harvard Electricity Policy Group, said the multiple cases Randazzo acted in are now “contaminated.” The chair has significant control over the commission’s agenda, he added.

Schilling also noted that the PUCO already has several ongoing cases looking at FirstEnergy’s political spending or HB 6. Each case is very limited, however.

“The commission has routinely stated, ‘[while we are] aware of reports containing allegations against FirstEnergy Corp. regarding its conduct in the passage of HB 6 and the subsequent referendum, we are determined to act in a deliberate manner, based upon facts rather than speculation, and with due consideration to the limits on our statutory authority over FirstEnergy Corp. and over the political and charitable activity of all public utilities in this state,’” Schilling said.

“The administrative law judges have said a few times during prehearing conferences they have no intentions of interfering with or getting ahead of a DOJ criminal investigation,” Schilling added.

However, last month’s federal court filing has arguably resolved the criminal claims stated in it against FirstEnergy. Under its deferred prosecution agreement, FirstEnergy must honor several commitments, including payment of a $230 million fine and various corporate governance matters to be performed over a three-year period. So far, Ohio Attorney General Yost has only filed civil claims in state court.

Randazzo’s “decades-long history of advocating against clean energy” raised concerns even before Gov. Mike DeWine appointed him in 2019, and decisions during his tenure confirmed those “deep biases against renewable energy and energy efficiency,” said Miranda Leppla, vice president of energy policy for the Ohio Environmental Council.

“Given the egregious bribery claims as part of the deferred prosecution agreement, there are serious questions about the former PUCO chair’s influence over each case he presided, which are possibly tainted by corrupt ties to FirstEnergy,” Leppla continued. “There should be a full investigation of each and every one of the rulings to ensure there was no corrupting influence and to restore the public’s trust in state government.”

A ‘piecemeal approach’

After the arrests of Householder and others last summer, the Office of the Ohio Consumers’ Counsel renewed calls for a full investigation into how FirstEnergy spent a no-strings-attached rider from its earlier bailout case, along with a detailed review of whether any ratepayer money was spent for political and charitable activities, or on HB 6.

Instead of forcing FirstEnergy to hire an independent auditor, PUCO hearing examiner Gregory Price first took the “baby step” of telling FirstEnergy to show that it didn’t improperly use consumer money or violate any laws or PUCO orders in activities related to HB 6. The PUCO finally ordered a full audit of the no-strings-attached rider on Dec. 30.

Meanwhile, on Sept. 30, 2020, FirstEnergy had filed an affidavit from Santino Fanelli, its director of rates and regulatory affairs, categorically denying that its utilities had “included, directly or indirectly, any H.B. 6 costs in any rates or charges paid by ratepayers in Ohio.”

The Ohio Consumers’ Counsel wanted Fanelli to answer questions under oath last October, but FirstEnergy fought against it and the questioning didn’t take place until March. Even then, Price ruled that Fanelli didn’t have to answer questions about the no-strings-attached rider, because that charge was part of a separate PUCO case.

“Taking this piecemeal approach means we aren’t getting a full picture of the utility’s operations,” Leppla said. “As a result, the PUCO may very well overlook, or completely miss, certain pieces of this unprecedented and complex scandal.”

Parts of the puzzle already suggest that the big picture would indeed be complex.

On Aug. 3, the PUCO announced in one of the pending cases that FirstEnergy’s utilities had improperly charged customers for about $6.6 million out of $24.5 million under review there. The audit also found that roughly $7.4 million of expenses had improperly been listed as capital costs and shouldn’t be part of the company’s rate base for future ratemaking.

FirstEnergy finally supplemented its filing on Aug. 6. But it only admitted to a “total revenue impact” of $14,534, for “pole attachment rates.”

Other amounts from the last $4.3 million paid to Randazzo’s company would have bumped up the base on which customers pay FirstEnergy’s utilities an approved rate of return. However, FirstEnergy’s filing said, caps on those charges had already been reached. In other words, the company apparently used a regulated rate category to hide part of a bribe, which would have bumped up customer charges if FirstEnergy hadn’t already maxed out recoverable amounts for the category. And the company seems to suggest it shouldn’t matter to the PUCO as long as customers didn’t pay more.

“We do now have a document — an audit — that shows that FirstEnergy, through various accounting tricks, improperly allocated questionable spending to accounts that allowed them to either recover or attempt to recover certain expenses from ratepayers,” Anderson said.

On the flip side, the PUCO audit only looked at specific charges and riders. And much of FirstEnergy’s spending remains shrouded in mystery.

“You can look at the deferred prosecution agreement, in which FirstEnergy admitted to paying $22 million to Randazzo’s firm,” Anderson said. “It’s quite a washing of money going from $22 million to $14,000, and a lot of complicated stuff happening in between.” In other words, most of the $22 million is still not accounted for.

Other pending cases are looking into separate riders and charges with varying degrees of detail and scope. On July 23, however, FirstEnergy’s lawyers asked the PUCO to extend the calendars in four cases by 90 days, presumably to allow for settlement talks.

“This is money that consumers deserve to have back in their pockets and that FirstEnergy has been holding anywhere from four to nine years now,” Consumers’ Counsel attorney Christopher Healey said during an Aug. 2 prehearing conference.

Price rescheduled the hearing for those cases for the end of November, with monthly status updates before then. A resolution is unlikely before next year.

“They seem to be just piecemealing things and going very slowly with it,” Brown said. “You can’t compartmentalize this stuff.” In his view, the PUCO also should consider FirstEnergy’s compliance history for purposes of determining its utilities’ allowable rate of return.

“I can’t speculate on how the staff or commission will analyze future applications,” Schilling said.

‘The kindest thing’

FirstEnergy’s Aug. 6 update to the utilities commission also claimed it didn’t know about the improper charges noted there before July, despite its blanket denial last September.

“The kindest thing you could say about the FirstEnergy board is that they’re negligent,” Brown said. In his view, the PUCO should exercise more oversight over the company and its utilities’ governance.

FirstEnergy’s agreement with the Department of Justice does call for it to review its corporate policies and accounting procedures to make sure it complies with federal law and “to ensure the maintenance of fair and accurate books, records, and accounts.” Those reforms are supposed to include a review of lobbying and consulting contracts, as well as independent audits and periodic reviews.

On paper, FirstEnergy’s existing policies and procedures should already have prevented the activities it admitted to, Brown said. And the July 22 filing specifies that the deferred compensation agreement with the federal government does not bind “any state or local law enforcement or regulatory agency.”

Technically, the PUCO’s authority extends to utilities that provide regulated utility services to customers in return for a monopoly for a designated area. In this case, that would be FirstEnergy’s three wholly-owned subsidiaries, Ohio Edison, Toledo Edison and the Cleveland Electric Illuminating Company. However, FirstEnergy has full control over those companies, and multiple activities are coordinated through other FirstEnergy affiliates, such as the FirstEnergy Service Company.

And precedent exists for such oversight, Brown said. Back in 1985, the PUCO made Columbia Gas add more Ohioans and more independent directors to its board. The commission had found the company “stalled and delayed” on switching to lower-cost natural gas suppliers instead of its own more expensive affiliates.

“We intend to serve as critics of the utilities we regulate. Our objective is to ensure quality at a fair price,” PUCO Chair Thomas Chema wrote in the agency’s annual report for 1986. Later in that report, he noted the commission’s view “that the reorganized Board would pursue prudent, independent good management” with more independent, outside directors.

FirstEnergy’s utilities are now separated from FirstEnergy Solutions, now known as Energy Harbor. However, the July federal court filing shows that corporate actions aimed to help that former generation affiliate even after the utilities theoretically had separate boards. And FirstEnergy Solutions’ bankruptcy arguably helped FirstEnergy.

The PUCO’s “entire purpose is to ensure Ohioans have access to fairly priced, reliable utility services,” Leppla said. “It is squarely in their purview to be undertaking an investigation into FirstEnergy’s conduct as to whether that’s happening, especially after finding out that the public utility bribed public officials and regulators.”

“In light of all the indictments and revelations regarding FirstEnergy’s illegal corporate activities, the PUCO absolutely should be minding the store … when it comes to corporate governance,” Learner said. “It’s not a theoretical matter. There has been illegal action that has been found and admitted to at the highest levels of FirstEnergy.”

FirstEnergy’s admissions feed critics’ call for big-picture regulatory oversight and review is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

Senate Bill 9 says agencies must cut their use of phrases including “must,” “shall,” “require” and “prohibit.”

Ohio Republicans are again pushing for arbitrary cuts in “regulatory restrictions” with a bill that, if enacted, could significantly weaken consumer, environmental, and public health protections.

A similar bill died in December when the last legislative session ended without final votes after conference committee work. Sens. Kristina Roegner, R-Hudson, and Rob McColley, R-Napoleon, have resurrected the proposal this session as Senate Bill 9.

The two lawmakers are chair and vice chair of the Ohio Senate’s Government Oversight and Reform Committee, which has held three hearings on the bill so far. A fourth hearing is on the agenda for today’s committee meeting at 10:30 a.m. Eastern time.

“SB 9 is an across-the-board 30% reduction of ‘regulatory restrictions’ without any concern over their impact on clean energy or our environment,” said Trent Dougherty, general counsel for the Ohio Environmental Council Action Fund. “Unless there are amendments to this bill, Ohioans could see a 30% increase in pollution, 30% reduction in quality of life for Ohio communities and 30% more roadblocks to our clean energy economy.”

“I find this legislation deeply troubling,” said Sen. Hearcel Craig, a Democrat from Columbus and ranking minority member for the Ohio Senate committee. “This number was selected without any factual evidence that it would benefit Ohioans.”

In Craig’s view, “Ohioans should be concerned with the increase in air pollution and the potential impacts this bill would have on our climate if this bill were to pass.” He likewise worries about the bill’s implications for social justice.

“The Ohio Departments of Jobs and Family Services, Health and Medicaid have rules and regulations that keep Ohioans safe and healthy and ensure they are equitably treated,” Craig said. “These are policies that I am terrified will go away due to this trend toward regulation reductions. We have a duty to protect our most vulnerable populations, and this legislation could impact the health and quality of life for many Ohioans.”

Word games

Many, if not most, state agency actions are authorized by statute, so it’s unclear how feasible it would be for many agencies to meet their targets under the bill.

Like earlier versions, SB 9 defines regulatory restrictions based on the use of words such as “shall,” “must,” “require” and “prohibit.” In addition to the bill’s percentage target, it would mandate that any new regulatory requirements could only be adopted if two other rules are cut. An agency likewise could not adopt any new rule if it would “cause the number of regulatory restrictions to exceed the state limit.”

Roegner’s sponsor testimony described the accumulation of new laws and regulations over time as “sludge in the economic engine.” To support her claim of Ohio’s many “restrictions,” Roegner referenced a linguistic analysis from George Mason University’s Mercatus Center. The Center for Responsive Politics has linked the group to the Koch brothers’ network.

“This study did not look at the purpose of these regulations, including whether they set standards for food or building safety,” Craig said. Instead, the report counted how many times various words were used, including “shall,” “must” and so on. “Cutting regulations just because certain politicians think our laws include the word ‘must’ too many times is not good public policy,” he said.

Roegner also cited work by the Mercatus Center to claim that U.S. per capita income would be about $13,000 higher if regulations had been held at 1980 levels from then until 2012. Yet the U.S. Environmental Protection Agency’s data for the same period show that the country’s gross domestic product grew dramatically as emissions of six common pollutants fell. Environmental regulation played a significant role in driving improved air quality.

Roegner’s testimony acknowledged that some regulations can have a positive impact. And SB 9’s text does call for consideration of rules’ continued need and adverse impacts on businesses or other persons or entities. Yet nothing in the bill or in her or McColley’s sponsor testimony requires an explicit cost-benefit analysis of rules before any rescission.

Another provision in the bill would require agencies to consider whether Ohio rules impose “a more severe duty or liability than restrictions in neighboring states in order to accomplish the same goal.” The language might be read to discourage more protective levels of regulation that might provide greater benefits than those of other states.

New provisions in the bill acknowledge that the executive branch can review agency rules at any time under Gov. Mike DeWine’s Common Sense Initiative. This year’s version also lets agencies ask the legislature’s Joint Commission on Agency Rule Review for adjustments to the bill’s requirements. Unless the legislative commission agrees, however, lawmakers might be able to invalidate rules.

Business vs. consumers?

Supporters of the bill that have testified so far include the Ohio Chamber of Commerce, Greater Cleveland Partnership, Americans for Prosperity-Ohio and others.

“A comprehensive inventory of agency restrictions will give policymakers a clearer picture of the state’s bureaucratic red tape, and capping regulatory restrictions will force the state to prioritize any proposed restrictions more carefully,” said researcher Greg Lawson in his testimony for the Buckeye Institute.

Testifying against the bill, Ohio Consumers’ Counsel Bruce Weston emphasized the need for public utility regulations and called for a focused approach to any rule review.

“We know that some regulations, like those for creating so-called electric security plans, should be eliminated,” Weston said. “Those plans can hinder the competitive market that we support for power plants and other technologies that are emerging.” Nonetheless, he said, public utility regulation is necessary to protect Ohioans from monopoly power.

“In some instances that monopoly power shows itself in undue influence by utilities in this state,” Weston said. In particular, the scandal surrounding FirstEnergy and others over Ohio’s nuclear and coal bailout law “is an example of how undue utility influence can negatively impact Ohio utility consumers.”

Along those lines, though, Weston noted that “House Bill 6 is also an example of creating more government interference and regulation in the power plant market, instead of reliance on power plant competition. So, repealing House Bill 6 is consistent with reducing government regulation.”

The “reckless” SB 9 bill could threaten utility customers in other ways as well, Craig noted. Some years ago, the Public Utilities Commission found that Duke Energy had violated a winter heating rule, leading to the deaths of an elderly widow and her disabled son in 2011.

“Those rules exist to protect vulnerable Ohioans,” Craig said. “We cannot arbitrarily cut regulations. Ohioans could suffer.”

Ohio Republicans’ bill would force state agencies to reduce their rule books is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.

An order empowers the chair or vice-chair to take unilateral action if a quorum isn’t practical or feasible.

UPDATE Friday, March 20, 11:45 a.m. EDT: Public Utilities Commission of Ohio Chair Sam Randazzo briefly commented on the single-commissioner delegation provision at the commission’s March 20 meeting.

“We have delegated the authority to myself and Commissioner Trombold to act in the event that we can’t get together. But that’s not our preferred course of  action,” he said. “So we are going to continue to try and have at least three commissioners when we need to issue a decision, like the one we’re going to issue today.”

The latest emergency order suspends nonessential in-person checks on utility equipment inside customer homes, such as checks on gas meter functioning. It also provides more details on the suspension of automatic approvals, which was ordered last week. Any utility requests for incremental cost increases will be taken up “on a case-by-case basis, recognizing that our time and attention is being focused presently on the things we need to do to manage the COVID-19 spread risk,” Randazzo said.

“We’re working towards having a regularly scheduled meeting on March the 25th and we’ll see you then,” he added.

The Public Utilities Commission of Ohio has gotten out in front of the coronavirus epidemic with emergency orders aimed at protecting consumers from utility shut-offs. But a provision for individual action by just the chair or vice-chair could test the limits of the commission’s authority.

The PUCO’s first emergency order on the coronavirus pandemic came on March 12, three days after Gov. Mike DeWine’s executive order declaring a state of emergency in Ohio.

“Last week the PUCO took action to be sure utilities are not disconnecting customers for nonpayment during the state of emergency,” said commission spokesperson Matt Schilling. A follow-up order on March 13 expanded the emergency directives to include situations where customers may need reconnections of utility service.

As of March 17, American Electric Power, Dayton Power and Light, FirstEnergy, and Duke’s utilities were all suspending disconnections at least temporarily, according to information compiled by the Energy and Policy Institute. In most cases, usage charges will continue to accrue.

Other parts of the March 12 PUCO order dealt with procedure changes during the public health emergency. Among them is a provision that makes Chair Sam Randazzo or deputy chair Beth Trombold “individually empowered to act and make decisions on behalf of the full Commission that are necessary to address and mitigate the impacts of that emergency.” The provision kicks in if either of them judges that it is “not practical or feasible to convene a quorum of commissioners.”

Schilling did not elaborate on what those conditions might be or whether there is any precedent for convening commission meetings via phone or a webinar/webcast set-up. “The Commission speaks through its orders,” he said.

However, there are ambiguities.

“The most sensible interpretation is that the chair is authorized to act unilaterally to take actions necessary to comply with the executive order,” said Mark Whitt, a regulatory lawyer with Whitt Sturdevant in Columbus, who commented in his individual capacity and not on behalf of any client.

Examples of such things could include requiring employees to work from home, going outside of usual procurement channels for emergency supplies, dealing with employee travel issues and so forth.

“I do not believe the order purports to waive the quorum requirement for action in specific cases,” Whitt said. If that’s correct, “then the commission order makes sense,” he added. “Someone needs to be in charge.”

At the same time, he agreed that technology alternatives for meetings could “make it unnecessary to ‘suspend’ the statutory quorum requirement.”

Individual action might also make sense if two or more commissioners become ill or must care for a sick family member during the epidemic. Three commissioners fall into the 60-and-over age group, which faces higher risks from COVID-19.

The commission did have a quorum March 17 when it ordered a temporary halt to door-to-door marketing by competitive gas and electric suppliers. The Office of the Ohio Consumers’ Counsel sought that change in comments filed on March 16. “Door-to-door sales of energy are inherently problematic for consumers, but now are an unacceptable risk during the public health emergency,” said those comments.

And an administrative law judge’s order on March 16 has suspended deadlines for various filings. That order also holds up automatic approvals for renewable energy certifications, businesses’ commitments of demand reduction and energy efficiency resources, and certifications for competitive retail suppliers of gas or electricity. Commission timeframes to act on various applications also are tolled.

Uncertain boundaries

PUCO authority for emergency orders goes back to 1911, former commissioner Sally Bloomfield reported in the Ohio State Law Journal in 1976. The statute’s current language lets the commission amend, alter or suspend rates when “necessary to prevent injury to the business or interests of the public or of any public utility of this state in case of any emergency to be judged by the commission.”

The commission relied on the statute three years ago in a 2017 case imposing extra charges on Youngstown Thermal customers when it went into receivership. Cases during the 1970s involved situations where utility rates did not keep up with rapid inflation. Bloomfield noted earlier cases as well.

The PUCO also relied on emergency authority when it first told utilities to set up Percentage of Income Payment Plans for low-income customers in 1983. That emergency action stood up to challenges. However, the Supreme Court of Ohio rejected the commission’s use of emergency authority to let gas companies recover unpaid amounts as part of the fuel component in their rates.

So, there are prior cases allowing the PUCO to exercise emergency authority. But there is also at least one instance in which a reviewing court found that authority had limits.

For now, “the only certainty is uncertainty,” Whitt said. Any review of the PUCO’s recent emergency orders or their parts would need to wait until someone challenges them or their parts. So far, no one has come forward to do that.

“On the whole, the commission and chair have shown commendable leadership,” Whitt said. “Sometimes it is better to ask for forgiveness than for permission,” he added.

The commission’s next regularly scheduled meeting was supposed to be March 25. Then the PUCO issued an agenda for another special meeting today, March 20, for consideration of yet another proposed entry on procedures during the declared state of emergency.

Ohio utilities commission order might stretch limits of emergency power is an article from Energy News Network, a nonprofit news service covering the clean energy transition. If you would like to support us please make a donation.