By Christen Smith

FirstEnergy Solutions asked the Ohio Supreme Court on Wednesday to block a vote to repeal $150 million in subsidies for its two nuclear plants.

The company argued the new ratepayer fees — ranging from 80 cents up to $2,400/month — are equal to a tax, making the underlying legislation, House Bill 6, ineligible for the petition that Ohioans Against Corporate Bailouts is currently circulating for a ballot referendum. (See Ohio Nuke Ballot Petition Approved.) The lawsuit names both the group and Secretary of State Frank LaRose, the state’s chief election official, as defendants.

“The charges levied by House Bill 6 are a tax and laws providing for the levy of a tax are exempt from a referendum under the Ohio Constitution,” said Tom Becker, an FES spokesperson. “The referendum is inherently misleading and confusing to Ohio voters. Ohioans and the state of Ohio should be spared the costs associated with this futile attempt to place this unconstitutional referendum on the ballot.”

FES requested a truncated timeline giving the anti-subsidy group (referred to in the lawsuit as the respondents committee) just five calendar days for a response. Briefs on the merits would be due from FES in another 15 days and from the committee 15 days after that before potential oral arguments.

Meanwhile, Ohioans Against Corporate Bailouts has until Oct. 21 to gather almost 266,000 signatures for the referendum to appear on the November 2020 ballot.

“Time is of the essence in this case because the respondent committee, within the last few days, has started undertaking a misleading and ultimately futile solicitation of voter support and signatures for the committee’s illegal referendum effort,” FES wrote. “It is inherently misleading and confusing to Ohio voters for the respondent committee and its circulators and other agents to circulate and file a referendum petition that states, implies or otherwise suggests that H.B. 6 is subject to a referendum when that is not true.”

Gov. Mike DeWine signed the Ohio Clean Air Act into law on July 23 after months of debate over whether the Davis-Besse and Perry nuclear plants were worth saving. (See Ohio Approves Nuke Subsidy.) FES, currently negotiating a Chapter 11 bankruptcy settlement plan, said both facilities would close without the subsidies — taking 4,300 jobs and most of Ohio’s carbon-free emissions with them. The act replaces the state’s renewable energy mandates with ratepayer surcharges to support the reactors and two Ohio Valley Electric Corp. (OVEC) coal plants.

Gene Pierce, spokesperson for Ohioans Against Corporate Bailouts, blasted the lawsuit in an emailed statement that called into question FES’ legal standing and state lawmakers’ own attempts to frame the bill as anything but a tax.

“This frivolous lawsuit is another desperate attempt by FirstEnergy Solutions to protect their ill-gotten billion-dollar bailout,” he said. “In addition to having no legal basis, their own proponents in the legislature repeatedly stated that H.B. 6 was not a tax increase in their efforts to secure enough votes for passage of the bill.”