by Thomas Kemmet, Associate Member, University of Cincinnati Law Review Vol. 91
The evidence of climate change is indisputable.1See generally Hans-O. Pörtner et al., Climate Change 2022: Impacts, Adaptation and Vulnerability, Intergovernmental Panel on Climate Change, 9 (2022), https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [https://perma.cc/9MQ5-PRLT]. The Earth is heating up at an alarming rate causing cataclysmic consequences not only to the natural environment, but also to the current notions of human existence.2Id. The drastic increase in greenhouse gas emissions is the principal cause of climate change,3Id. in which humans are predominantly culpable.4Sources of Greenhouse Gas Emissions, EPA, https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (last visited Oct. 15, 2022). The main source of greenhouse gas emissions derives from human practices including transportation and energy consumption at the industrial and residential level, especially for electricity and heat.5Id. In total, the need for electricity comprises roughly a quarter of the total greenhouse gas emissions in the United States.6Id. Approximately sixty percent of the electricity production in the United States is generated from the burning of fossil fuels such as coal and natural gas––two leading elements of greenhouse gas emissions.7Id. To help combat climate change, electric production in the United States must be altered.8See generally Pörtner et al., supra note 1. The adoption of renewable energy sources such as wind and solar power are both viable and efficient options to replace the reliance on greenhouse gas emitting alternatives.9Id. Moreover, the United States has seen a substantial shift in recent years with an increase in energy production coming from renewable resources like wind and solar facilities.10U.S. Energy Facts Explained, EIA, https://www.energy.gov/eere/renewable-energy (last visited Oct. 15, 2022). However, a full transition to cleaner energy sources still face substantial obstacles in the United States. One such hindrance can be seen with specific state legislation on the establishment of renewable energy sites such as the enactment of Ohio Senate Bill 52: “To Amend sections . . . of the Revised Code to permit a board of county commissioners to prevent power siting board certification of certain wind and solar facilities, to provide for ad hoc members of the power siting board, and to establish decommissioning requirements for certain wind and solar facilities.”11S.B. 52, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
This article will first explore and discuss the mandates of Ohio’s Senate Bill 52. Then, the article will briefly discuss Ohio’s contradicting legislation regarding fossil fuels from the passing of Senate Bill 52 and House Bill 201. Finally, the article will discuss the implications of the enactment of Ohio’s Senate Bill 52 and House Bill 201 on environmental protection.
A. The Enactment of Senate Bill 52
On October 11, 2021, Ohio’s Senate Bill 52 became effective––changing the landscape of Ohio’s transition to cleaner energy sources for the foreseeable future.12Jake Zuckerman, Ten Counties Ban Wind, Solar Projects Under New State Law, Ohio Cap. J. (Aug. 23, 2022, 3:55 AM), https://ohiocapitaljournal.com/2022/08/23/nine-ohio-counties-ban-wind-solar-projects-under-new-state-law/. The bill amended roughly twenty-five sections of the Ohio Revised Code (“O.R.C.”) as they pertain to the process of establishing sizable wind and solar farms in the State of Ohio.13Ohio S.B. 52. According to Senator Reineke, the primary sponsor for the Bill, the purpose of the legislation was to put the power back in the hands of the local citizens.14Sponsor Testimony on S.B. 52, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Sen. Bill Reineke). The Senator reasoned that the prior procedure for the construction of these clean energy facilities failed to take into account the local constituencies opinions.15Id. Thus, the new legislation was aimed to provide more awareness to the local populace on the construction of wind and solar farms, as well as to provide a platform for citizens to voice their sentiments about the establishment of these utility facilities.16Id.
Furthermore, one of the most critical amendments of the bill focused on O.R.C. Section 303.58––a county resolution may prohibit construction of wind farm or solar facility; restricted areas; maps and boundaries.17Ohio Rev. Code § 303.58 (2021). Section 303.58(A) permits the board of county commissioners to adopt resolutions restricting construction of “economically significant wind farms,” “large wind farms,” and “a large solar facility” (“utility facilities”) in portions of, or all of, unincorporated areas. The additional provisions of Section 303.58 outline the procedures for the county board to pass a resolution restricting construction in the designated unincorporated areas.18Id. Some of these procedures include that the public must be notified of the date and time of a hearing, there must be a map of the potential restricted areas displayed, as well as provisions on how and when the public and parties should be notified.19Id.
After a public meeting is held and a resolution is passed, pursuant to O.R.C. Section 303.59, a resolution becomes effective thirty days after its adoption.20Ohio Rev. Code § 303.59 (2021). However, if within the thirty days that a resolution is adopted, citizens file a petition to the Board of County Commissioners with at least eight percent support from those who voted in the county for the election for the governor, then there will be a referendum at the next general or special election with the proposed resolution to restrict construction of the utility facilities on the ballot.21Id.
If a resolution is ratified by a county, it becomes binding on the Ohio Power Siting Board (“OPSB”).22Ohio Rev. Code § 303.60 (2021). O.R.C. Section 303.60 essentially precludes the OPSB from accepting any applications for a certificate, or any material amendment to a current certificate for any utility facilities that are banned by the adoption of a county resolution.23Id. Alternatively, if a county does not pass any resolution and the utility construction site is accepted by the county, then OPSB can receive and review applications.24Jon Stock, Ohio SB 52 – Local Stakeholders Gain Leverage on Ohio Wind and Solar Projects, Vorys (2021), https://www.vorys.com/publication-Ohio-SB-52-Local-Stakeholders-Gain-Leverage-On-Ohio-Wind-and-Solar-Projects.
B. Certification by the Ohio Power Siting Board
If no resolution is passed under Senate Bill 52, then the original procedure for certification in the construction of energy facilities is applied. That is, per Section 4906.04 of the O.R.C., all new prospective construction projects of a utility facility must obtain a certificate from OPSB.25Ohio Rev. Code § 4906.04 (1981). The OPSB then has vested authority to approve or disprove any such projects.26Ohio Rev. Code § 4906.03 (2012). However, before the OPSB can approve or disprove an application it must hold a public hearing within sixty to ninety days after an application is received.27Ohio Rev. Code § 4906.07 (2012). Once a public hearing is held, OPSB must consider the arguments brought out by the public hearing as well as many other factors enumerated in the O.R.C. Section 4906.10––such as the environmental impact, the need for such a facility, the public interest etc.28Ohio Rev. Code § 4906.10 (2021). After all of the factors listed in Section 4906.10 are considered and deliberated, OPSB will determine whether to approve, deny, or modify and approve the certification of the utility facility.
Importantly, Senate Bill 52 was enacted to only apply to large wind and solar energy facilities.29Zuckerman, supra note 12. In other words, fossil fuel utility projects are exempt from the County Board review process and just have to receive certification from the OPSB.30Id. On the other hand, solar and wind utility facilities of the specified size have to first obtain approval from the County Board of Commissioners and then they can apply for a certificate through OPSB to successfully be permitted for a construction site.31Stock, supra note 24. This dichotomy in the procedure to construct clean energy facilities compared with fossil fuel facilities, as established by Senate Bill 52, was not the only recent legislation that appeared to support the fossil fuel industry in Ohio.32Jake Zukerman, DeWine Signs Bill Blocking Ohio Cities from Banning Natural Gas, Ohio Cap. J. (July 1, 2021), https://ohiocapitaljournal.com/2021/07/01/dewine-signs-bill-blocking-ohio-cities-from-banning-natural-gas/.
C. Enactment of House Bill 201
Less than one month prior to the effective date of Senate Bill 52, House Bill 201––“To Enact sections . . . of the Revised Code to prevent local governments from limiting use of natural gas and propane”––went into effect.33Id. House Bill 201 enacted three new sections of the Ohio Revised Code.34H.B. 201, 134th Gen. Assemb., Reg. Sess. (Ohio 2021). One of the most significant sections was 4933.41.35Id. Subsection (C) of Section 4933.41 stipulates that no legislative authority or political subdivision can pass any ordinance resolution, or any other type of requirement that would restrict or preclude the use of natural gas or propane for residential, commercial, or industrial purposes.36Id. According to the primary sponsor, Representative Jason Stephens, the purpose of the bill is to protect consumer’s rights and preserve the economy.37Sponsor Testimony on H.B. 201, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Rep. Jason Stephens). Representative Stevens prescribed that local consumer’s must have a choice in deciding what energy options work best for them and citizens’ and businesses’ access to the abundance of natural gas resources in the State of Ohio must be maintained to protect the economy.38Id. Yet, House Bill 201 appears to directly contradict Senate Bill 52 regarding the importance of local government in the decision making process for energy usage.39Sponsor Testimony on H.B. 201, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Rep. Jason Stephens).
The recent passing of Senate Bill 52 and House Bill 201 raise significant questions about Ohio’s commitment to protection of the environment.40See generally discussion supra Part II. More specifically, Ohio’s legislature has seriously encumbered the ability for Ohio to transition away from fossil fuels to clean energy alternatives.41Id. First and foremost, the disparity of Ohio’s recent legislation regarding energy facilities that utilize fossil fuels and clean energy are stark.42Id. For instance, Senate Bill 52 was enacted to give more power to local governments and its people.43S.B. 52, 134th Gen. Assemb., Reg. Sess. (Ohio 2021). Conversely, House Bill 201, restricts the power of local governments and its people.44H.B. 201, 134th Gen. Assemb., Reg. Sess. (Ohio 2021). The underlying theme between this severe dichotomy of legislation passed is the energy source in question. Senate Bill 52 vests power in the local authorities and their constituents to restrict the construction of specifically large wind and solar facilities.45Ohio S.B. 52. In other words, Senate Bill 52 granted local governments and its constituents the explicit power to control the development of only clean energy facilities in their counties.46Id. Alternatively House Bill 201, specifically proscribes local governments and its people from restricting the use of particular fossil fuels, specially natural gas47Ohio H.B. 201.––a leading greenhouse gas emitter.48Sources of Greenhouse Gas Emissions, supra note 4. Thus, the passing of these legislations ultimately vests power in local citizens to only restrict the development and use of clean energy in their county but have zero voice when it comes to limiting energy facilities as they pertain to fossil fuels.49See generally discussion supra Part II.
Furthermore, the direct effect of Senate Bill 52 serves as an obstacle for Ohio to protect the environment by adopting clean energy sources.50Ohio S.B. 52. The bill explicitly enables counties to restrict the construction of large wind or solar farms in their county.51Ohio Rev. Code § 303.58. In other words, counties can directly prevent Ohio from transitioning to cleaner energy facilities to protect the environment.52Id. Ten counties have already closed the door on establishing wind and solar facilities in their jurisdiction.53Zuckerman, supra note 12. Pursuant to Senate Bill 52, counties such as Logan, Medina, Allen, and others have all passed resolutions banning the construction of large wind and solar farms in unincorporated areas.54Id. Other counties are following in their footsteps and have begun discussing the adoption of similar resolutions.55Id. Furthermore, these county resolutions have already ensured that some counties in Ohio will not adopt clean energy sources of wind and solar power and will continue to rely on environmentally degrading fossil fuels for their electricity.56Id.
Additionally, the very process outlined in Senate Bill 52 creates a significant impediment for Ohio to transition to clean energy sources.57Stock, supra note 24. Senate Bill 52 requires any solar or wind energy company wishing to establish a site in the State of Ohio to engage in two lengthy certification processes.58Id. First, pursuant to O.R.C. 303.58, clean energy companies wishing to establish a site in Ohio have to be vetted by a County Board of Commissioners.59Ohio Rev. Code § 303.58. If such a site is permitted to be constructed in the county, then the company must apply for certification with OPSB and endure their lengthy process to receive certification.60Stock, supra note 24. However, a company wishing to establish an energy site powered by fossil fuels in Ohio has a one-step process.61Id. Unlike the development of a wind or solar facility, the establishment of a fossil fuel facility only has to receive approval from OPSB.62Id. Conversely, wind and solar companies looking to establish a site must endure a lengthy two-step process with the County Board of Commissioners and then with OPSB which includes multiple hearings.63Id. Thus, the two-step process can serve as a significant deterrent for clean energy companies from even attempting to construct a site in Ohio.64Zuckerman, supra note 12. Most wind and solar companies would look to invest elsewhere before trying to overcome the longwinded processes put in place by the Ohio legislature. Thus, Ohio’s ability to transition away from environmentally harmful energy facilities and adopt clean energy facilities is severely restricted.65Id.
The state legislature of Ohio has seriously limited Ohio’s capabilities to protect the environment. Transitioning away from environmentally destructive fossil fuels for cleaner energy alternatives in wind and solar energy is vital to overcome the looming consequences of climate change.66See generally Pörtner et al., supra note 1. However, Ohio’s recent legislation has ensured just the opposite.67See discussion supra Part III. The legislation has not only made it harder for clean energy alternatives to be adopted, but has ensured protection for the use of fossil fuels.68Id. In order to protect the environment and encourage the adoption of clean energy sources like wind and solar power, Ohio must reconsider their previous legislative actions, and at the very least amend the recent legislation to place the development of wind and solar energy sites on an equal ground with that of fossil fuel sites.
- 1See generally Hans-O. Pörtner et al., Climate Change 2022: Impacts, Adaptation and Vulnerability, Intergovernmental Panel on Climate Change, 9 (2022), https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [https://perma.cc/9MQ5-PRLT].
- 4Sources of Greenhouse Gas Emissions, EPA, https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (last visited Oct. 15, 2022).
- 8See generally Pörtner et al., supra note 1.
- 10U.S. Energy Facts Explained, EIA, https://www.energy.gov/eere/renewable-energy (last visited Oct. 15, 2022).
- 11S.B. 52, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
- 12Jake Zuckerman, Ten Counties Ban Wind, Solar Projects Under New State Law, Ohio Cap. J. (Aug. 23, 2022, 3:55 AM), https://ohiocapitaljournal.com/2022/08/23/nine-ohio-counties-ban-wind-solar-projects-under-new-state-law/.
- 13Ohio S.B. 52.
- 14Sponsor Testimony on S.B. 52, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Sen. Bill Reineke).
- 17Ohio Rev. Code § 303.58 (2021).
- 20Ohio Rev. Code § 303.59 (2021).
- 22Ohio Rev. Code § 303.60 (2021).
- 24Jon Stock, Ohio SB 52 – Local Stakeholders Gain Leverage on Ohio Wind and Solar Projects, Vorys (2021), https://www.vorys.com/publication-Ohio-SB-52-Local-Stakeholders-Gain-Leverage-On-Ohio-Wind-and-Solar-Projects.
- 25Ohio Rev. Code § 4906.04 (1981).
- 26Ohio Rev. Code § 4906.03 (2012).
- 27Ohio Rev. Code § 4906.07 (2012).
- 28Ohio Rev. Code § 4906.10 (2021).
- 29Zuckerman, supra note 12.
- 31Stock, supra note 24.
- 32Jake Zukerman, DeWine Signs Bill Blocking Ohio Cities from Banning Natural Gas, Ohio Cap. J. (July 1, 2021), https://ohiocapitaljournal.com/2021/07/01/dewine-signs-bill-blocking-ohio-cities-from-banning-natural-gas/.
- 34H.B. 201, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
- 37Sponsor Testimony on H.B. 201, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Rep. Jason Stephens).
- 39Sponsor Testimony on H.B. 201, 2021 Leg., 134th Gen. Assemb. (Ohio 2021) (statement of Ohio Rep. Jason Stephens).
- 40See generally discussion supra Part II.
- 43S.B. 52, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
- 44H.B. 201, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
- 45Ohio S.B. 52.
- 47Ohio H.B. 201.
- 48Sources of Greenhouse Gas Emissions, supra note 4.
- 49See generally discussion supra Part II.
- 50Ohio S.B. 52.
- 51Ohio Rev. Code § 303.58.
- 53Zuckerman, supra note 12.
- 57Stock, supra note 24.
- 59Ohio Rev. Code § 303.58.
- 60Stock, supra note 24.
- 64Zuckerman, supra note 12.
- 66See generally Pörtner et al., supra note 1.
- 67See discussion supra Part III.