By Kathiann M. Kowalski for Canary Media.
Broadcast version by Farah Siddiqi for Ohio News Connection reporting for the Solutions Journalism Network-Public News Service Collaboration

A regulatory board’s rejection of a permit for a large solar farm in southwestern Ohio has “essentially rewritten” state law to give local governments veto power over clean energy projects, an attorney for the project’s developer argued last week before the Ohio Supreme Court.

The Ohio Power Siting Board’s 2022 decision denying Vesper Energy the right to build a 175-megawatt solar facility in Greene County is the subject of a high-stakes legal challenge with potentially “devastating” consequences for the state’s ability to grow its electricity generation capacity, the developer’s attorney said.

“All of Ohio’s energy infrastructure will be affected by this decision,” said Michael Settineri, who represents Vesper’s Kingwood Solar project, in an oral argument before the court on March 13.

The company claims the siting board failed to follow state law in its analysis of whether its project is in the public interest — one of eight criteria that power generation projects must meet to receive a site permit. Instead of evaluating the merits of opponents’ arguments, the board used the mere existence of local government opposition as reason to deny the permit, Kingwood Solar’s attorney said.

A lawyer for the Ohio Power Siting Board argued that it has wide discretion to make policy judgments and that members used “a broad lens” to make their decision.

Local criticism has killed multiple Ohio solar projects 

Renewable energy permitting has become especially difficult in Ohio over the last four years. A 2021 law lets counties block most new utility-scale wind and solar energy projects before they even get to the Ohio Power Siting Board. Others, like Kingwood Solar, have been denied based on local opposition, even though they are exempt from that part of the law because they filed permit applications or got in the grid operator’s queue prior to the legislation’s passage.

In 2022, the board found that the proposed Kingwood Solar facility met all the other legal requirements for a permit, yet it concluded “that the unanimous opposition of every local government entity” bordering the project was “controlling” on the public interest question. The board denied the permit.

Settineri urged the court to reverse the Ohio Power Siting Board’s decision, arguing that it was clearly not supported by evidence. And, as a legal matter, the board essentially rewrote the law for granting or denying a permit in a way that gives local governments control that they shouldn’t have, he said.

Justice Jennifer Brunner noted another part of Ohio law that says local governments can’t require their own consent for the construction of power facilities. When the board’s Kingwood Solar decision said “that unanimous opposition is controlling, that actually infers that consent is required by the locality. Isn’t the board violating the statute?” she asked Settineri.

He answered,“The way I read the board’s decision, it is giving the local governments veto power … contrary to the concept of a state siting regimen.”

Renewable developer says Ohio regulators failed to consider evidence 

The board’s ruling was also “internally inconsistent,” Settineri said. The board claimed it gave weight to the “vigor and rationale” of local governments’ objections, which included worries about visual impacts, preservation of agricultural land, and construction.

But the solar developer presented experts and other evidence addressing those topics during a 2022 hearing in the case. It was also willing to accept permit conditions to minimize any impacts. As a result, the board sided with the developer on those issues in its findings on statutory criteria other than public interest, including considerations related to agriculture and the environment, Settineri said.

“There has to be evidence, and the board has to consider the evidence,” Settineri said, arguing that the fact some people say they don’t want the project shouldn’t be enough to decide the case.

Judge Marilyn Zayas, a court of appeals judge sitting in for Justice Patrick DeWine, who recused himself, asked Stephen Funk, the lawyer representing the Ohio Power Siting Board, whether the board is “able to weigh the factors any way they wish.”

Funk told Zayas that the board has broad discretion, and it “made a policy judgment that this would not serve the public interest” after considering the vigor and rationale of arguments by the local opposition.

Brunner appeared skeptical of Funk’s efforts to make it seem as if the board members did more than cede to local governments’ opposition. The board didn’t say it was giving those governmental entities veto power, “but in effect they did,” she countered.

Responding to questions from Chief Justice Sharon Kennedy, Funk said each permitting case is considered individually. He also said public comments weren’t used as evidence by the board and didn’t determine the outcome.

On rebuttal, Settineri stressed that, in light of the rest of the board’s decision on Kingwood Solar, there is no evidence backing up the claim that the vigor and rationale of local governments’ opposition meant that the project would not serve the public interest. “If I yell loud enough, does that give me a win?” he asked.

The board appeared to accept local objections at face value, said Chris Tavenor, general counsel at the Ohio Environmental Council, which is not a party to this case. “The evidence on the record needs to be interrogated closely to see whether what the government is bringing forward is factually accurate and correct.”

“The board needs to actually weigh reasons for opposition,” Tavenor added. “The mere existence of opposition or support shouldn’t be enough.”

A looming decision

The Ohio Supreme Court will debate the case and is expected to come out with a decision in the coming months.

A decision against Kingwood Solar would establish a legal precedent that makes it much harder for companies to overcome local pushback, which has often been fueled by misinformation. An adverse ruling for the solar developer also would continue the uncertain regulatory standards and framework from the past several years.

Layne Ashton, a senior project development advisor focused on utility-scale solar at Engie North America, said his company would be very cautious about moving ahead with new facilities in Ohio.

“We’d do some significant due diligence up front” for any potential projects in the state, he said. That would include testing whether local officials would welcome them. The court’s judgment will also impact the broader legal question of whether Ohio Power Siting Board decisions must be based on evidence, versus politics or opinions.


Kathiann M. Kowalski wrote this article for Canary Media.


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Nevada clean-energy proponents have launched a new website to help connect Nevadans to energy and cost-saving programs.

One of the nonprofits behind getting SaveEnergyNV.org online was the Nevada Conservation League. Angelyn Tabalba, a consultant for the group, said the free tool aims to streamline the process for folks to find federal, state and utility company programs for which they may qualify.

Some of the Trump administration executive orders have stopped Biden-era funding and investments in clean-energy initiatives, so Tabalba encouraged folks to check out what's still available now.

"These programs are already making a difference for Nevada families, whether those are tax credits to help families install solar and utilize rebates to make their home energy upgrades possible," she said. "The progress is fragile and the same clean-energy investments that are helping lowering costs for families and creating jobs across Nevada are now at risk."

While President Donald Trump has targeted some parts of the Inflation Reduction Act, some Republicans in Congress are urging the administration to leave most of the IRA intact, for the jobs and economic benefits it has brought to local communities.

Tabalba called the SaveEnergyNV website a one-stop shop and said they'll launch a Spanish-language version in the near future.

Will Pregman, loan officer and program manager for the Nevada Clean Energy Fund, said one of the biggest barriers to making energy-efficiency upgrades is the upfront costs - so tax credits and incentives can help reduce that burden. With summer on the horizon, he said, the new tool can help Nevadans ensure their air conditioning systems are ready.

"We see that demand escalate dramatically in the summer as people's old units start breaking down at inopportune times," he said, "and SaveEnergyNV can help Nevadans be proactive and find a solution to their air conditioning issues now, before they have to scramble in an emergency."

Pregman noted that the first step in lowering energy bills is getting a home energy audit, since all homes are different and will have different issues. For now, Nevadans are still able to claim up to $150 toward the cost of an energy audit thanks to tax credits in the IRA.

Over the past 15 years, West Virginians have been shelling out more of their income each month on electricity bills. Now, as lawmakers continue to push a reliance on coal, with support from the Trump administration, advocates say they are worried about residents' bottom line.

According to federal data, U.S. production of coal has steadily dropped over the past two decades.

Emmett Pepper, policy director for Energy Efficient West Virginia, said coal is now an expensive choice for producing energy compared with renewable resources. He adds big coal's grip on the state is costing households.

"We have monopolies in West Virginia for our electric utilities, so they should be run in a way that is the most cost effective reducing the bills for West Virginians," he explained.

Residents have seen their average electricity price jump by 90% since the early 2000s, according to Conservation West Virginia. The West Virginia Coal Association argues ramping up coal production will lower consumers' bills.

Last month Appalachian Power, one of the state's largest utilities, asked state regulators to raise rates to make up for operating costs. If approved, residents' bills would increase by around $5 per month. Meanwhile, Pepper noted, grants for energy efficiency and assistance are shrinking, leaving residents with few options.

"The state and federal government could be doing more to help people who are struggling with their electric bills," he continued. "Instead, we've seen a budget come out that actually completely eliminates support that people have had in the past."

More than 60% of Americans support the goal of taking steps for the nation to become carbon neutral by 2050, according to a Pew Research Center survey released last year.

A bipartisan group of current and former elected officials said the continued use of fossil fuels threatens global security and they want funding for climate investments restored.

Rep. Debbie Sariñana, D-Albuquerque, state director of Elected Officials to Protect America, is a member of the bipartisan group Elected Officials to Protect America. At the group's Energy Security Summit Tuesday, she emphasized the importance of provisions in the Inflation Reduction Act and Infrastructure Investment and Jobs Act.

Sariñana cited the 161 pumpjacks located within a mile of an elementary school adjacent to the oil-producing Permian Basin, exposing kids to cancer-causing chemicals.

"The hardest part of being a legislator is watching on this committee, where they have the representatives from their districts sitting there and they don't do anything, they don't say anything," Sariñana explained. "They don't see it as wrong because money is the most important thing about the Permian Basin."

Since taking office, President Donald Trump has asserted fossil fuels are better for energy security. The Biden administration's laws aimed to invest in domestic energy production while promoting clean energy and represent the federal government's biggest climate investments in history.

Sariñana acknowledged it can be a challenge to advocate for clean alternatives because New Mexico derives a significant portion of its revenues from fossil fuels. At the same time, the state's clean energy portfolio includes solar, geothermal and wind, with the state ranked seventh in the nation in wind generation. She noted funding for almost 1,000 state projects, covering everything from transportation to agriculture and wildfires are at risk.

"All these provisions and funding from the Inflation Reduction Act and Bipartisan infrastructure Law and environmental regulations must be restored for the future of our people, for their prosperity and health, and security," Sariñana contended.

An executive order by President Donald Trump April 8 instructed the Department of Justice to eliminate the independent constitutional authority of every state to govern its own climate laws.


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