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Ohio Supreme Court to address referendum rights related to nuclear subsidy law

The Ohio Supreme Court indicated Dec. 24 that it would answer a handful of questions related to the referendum rights of parties that had been seeking to repeal Ohio's nuclear subsidy law enacted earlier this year.

A federal judge with the U.S. District Court for the Southern District of Ohio in October certified questions to the state Supreme Court regarding whether parties have a guaranteed right under the state's Constitution to have 90 days to gather signatures to get a referendum on the November 2020 ballot.

The case involves an effort by a group called Ohioans Against Corporate Bailouts to get a question on the ballot on whether to repeal House Bill 6, which, among other things, provides $150 million in annual financial support for two nuclear plants owned by FirstEnergy Solutions Corp., or FES.

Separately, in a late November decision, the state Supreme Court dismissed a suit by the group challenging the law. FES has filed a suit against Ohioans Against Corporate Bailouts, claiming the repeal effort is exempt from a referendum under the state constitution.

The group did not meet the October deadline to get enough signatures, but it sought more time and argued that a "blackout period" in state law that mandates preapproval of the referendum petition before "obtaining a single signature" is unconstitutional. It received approval from state officials Aug. 30 to begin collecting 265,744 signatures of registered voters in Ohio to get the measure on the ballot but had a deadline of Oct. 21, which it did not meet.

The court said it will answer whether the right to referendum guarantees those circulating petitions a full 90 days to gather signatures. If the court finds that 90 days is guaranteed, it will address whether the Ohio law violates the state Constitution by shortening that period to "accommodate the fair-and-truthful review." The court will also answer a number of additional questions related to how to calculate the total number of days the group ought to be credited.

Timothy Fox, vice president at ClearView Energy Partners, suggested in a note that Ohioans Against Corporate Bailouts has a number of additional hurdles ahead, starting with convincing the court that it is entitled to another 38 days to gather the 45,000 or so signatures it would need. In addition, "we expect FirstEnergy Solutions and other bill supporters to resume their aggressive (and so far, successful) campaign to thwart the referendum," Fox wrote. Furthermore, referendum proponents would need to get Ohioans to support the referendum during the November 2020 election.

"Consequently, we continue to believe the state's nuclear assistance program may remain law," Fox wrote. (Case No. 2019-1447)