Wind and solar developers that want to build utility-scale projects in rural Ohio must first check in with local county commissioners, rather than the state agency that has overseen utility power plant and pipeline projects since 1972, under legislation approved Tuesday during the last minutes of the state’s spring legislative session.

S.B. 52 — introduced in February and amended and revised four times following hundreds of hours of testimony from farmers both for and against, as well as business and manufacturing organizations and growth associations — would create a local voice at the beginning of any future large wind and solar project in the state.

The bill passed the Ohio House of Representatives 52-44, with about 10 Republicans joining all Democrats in opposition. The Ohio Senate approved the newest version of the bill earlier in the day by a vote of 51-12, with four Republicans joining eight Democrats in opposition.

Under the legislation, which Gov. Mike DeWine (R) is expected to sign with an effective date in October, wind and solar developers must contact the boards of county commissioners in counties where the project would be located at least 90 days before filing an application with the Ohio Power Siting Board (OPSB).

The OPSB is an agency created 49 years ago within the Public Utilities Commission to regulate the siting of power plants, transmission lines and pipelines, none of which will be subject to the new hyper local regulation.

Under S.B. 52, the three-member boards would have 90 days either to approve, deny or modify the footprint of a wind or solar farm during a public meeting. That commission decision would be subject to a ballot referendum if at least 8% of those who voted in the most recent election petition the county’s board of elections.

If accepted by the county, project developers would then have up to 300 days to apply to the OPSB, which would begin another round of hearings, including local hearings and adjudicatory hearings in Columbus, which often include negotiations between developers, opponents and the OPSB staff. Applications before the OPSB are usually about 1,500 pages.

The new law would also give county commissioners the right to create “exclusion zones” within unincorporated portions of their county, permanently blocking any wind or solar development, subject again to a referendum vote.

The legislation would also require the OPSB to accept two “ad hoc” voting members when it votes on a wind or solar project. The two would be a county commission and a township trustee from the area impacted by a wind or solar farm. The OPSB includes seven voting members and four nonvoting legislators.

The bill also “grandfathers” a significant number of solar and wind projects already well along in the permitting process before the OPSB.

As originally proposed, the legislation would have required developers to seek permission in each township affected by a proposed development, a provision that prompted some developers testifying before Senate and House utility committee hearings to say they would simply leave Ohio if that became law.

Hundreds of rural residents opposed to an “invasion” of wind and solar projects appeared at Senate and later House committee hearings or sent written testimony in favor of the legislation.

A significant number of their neighbors also turned out to talk about property rights: that is, their right to lease portions of their property for wind or solar projects to create a steady revenue stream buttressing their not-so-steady farming revenue.

Several solar developers meanwhile created an ad hoc group, the Utility Scale Solar Energy Coalition of Ohio (USSEC), initially to oppose S.B. 52, which had quickly reached the Senate and was approved, while the companion legislation, H.B. 118, remained stuck in committee. The two bills were merged in a new version of S.B. 52, which was sent to the House floor this week after five days of hearings and negotiations with committee members who opposed the bill.

Solar developers took on the legislation early, creating an ad hoc group of project developers who testified against the legislation and met with lawmakers in recent weeks in an effort to blunt some the bill’s original provisions.

Following the passage of the legislation, USSEC Executive Director Jason Rafeld was cautiously optimistic about future development under the new law.

“Although the members [of USSEC] remain concerned that S.B. 52 contains numerous vehicles [that] would allow local governments to stop solar development without the benefit of accurate information, we appreciate the willingness of the legislature to engage in discussions and listen to the concerns of the solar development community,” he said in a brief statement Tuesday during an interview. “As a result of countless meetings with the sponsors and legislators, many solar projects will continue, thereby protecting the investment made by companies seeking to build solar energy projects in our state.”

Legislators’ Positions

The debates that began during the first committee hearings continued to the very end, especially on the House floor as one representative, William Seitz (R), tried without success to insert language in the bill allowing township trustees to add their township to “exclusion zones” created by county commissions. The measure, a repeat of what Seitz tried in committee, was soundly defeated.

Before the vote in the House, Rep. Craig Riedel (R), a co-sponsor of the legislation from northwest Ohio where there has been significant wind farm development, said renewable development had become a “quality-of-life issue” for many of his constituents.

“This legislation addresses the pressing issues of what will be done once a project is proposed and how local involvement can be installed in the Ohio Power Siting Board process.

“My constituents, and those throughout the state, are asking for a voice. … The beauty of this legislation is that it gives local control to elected county commissioners for them to decide what is best for their community,” he said.

Opposition among Democrats, most of whom represent suburban and metropolitan areas, never waned during the months of committee hearings. Before the House vote, Rep. Kent Smith (D) said the bill was simply unfair to renewable developers.

“I cannot support substitute Senate Bill 52 because it creates a legislative double standard, as it unfairly singles out wind and solar energy and imposes on only them additional regulatory processes, from which other forms of energy infrastructure are exempt,” he said.

“There is no reasonable justification for requiring that some energy technologies be subject to multiple overlapping forms of local and state control, while others are promoted and protected from local voices. A major concern with [the bill] is its impact on affordability and its subsequent harm that it’ll do to utility prices by erecting barriers to and injecting uncertainty in solar and wind development. It will significantly curtail supply of the most affordably priced generation available and therefore drive up costs.”

One reason for the solid Republican support of the bill may have been the stance of Senate President Matt Huffman (R), who has questioned the value of wind and solar generation and has been strongly opposed to the OPSB process. He vowed to introduce local controls months ago after residents in his district organized resistance to a proposed solar project in his home county.

In a news conference before S.B. 52 had been voted out of committee, Huffman explained in answer to a reporter’s question that the issue over wind and solar projects was “essentially a zoning issue” and should therefore be subject to local control.

“Almost all zoning questions … are always subject to … the question: Why does the government get to tell you what to do on your property?” he said before posing the rhetorical, “Will local jurisdictions have the same kind of control [over a wind or solar project] they would have if you’re going in to build a McDonald’s, if you’re going in to build a manufacturing plant or put in a new landfill? Will [local zoning boards] have the same kind of participation as they do with these projects?”

Huffman also said big wind and solar projects don’t produce enough energy, considering the amount of land they require.

“These projects don’t produce very much energy, and the energy they do produce is very expensive, and most of the projects aren’t financially viable without tax credits; essentially the federal taxpayer is paying for the project to be financially successful. Some wind projects independently are successful and they are built on industrial property. That fits well into our typical zoning,” he said.

Reaction

Reaction to the passage of the legislation from environmental groups was immediate and negative.

“The legislature keeps throwing up roadblocks to renewables, whether it’s through unnecessary, bad policy or, as was the case with H.B. 6, outright corruption, said Neil Waggoner, senior Ohio representative for the Sierra Club’s Beyond Coal Campaign, in a reference to the state’s nuclear and coal power plant bailout legislation approved in June 2019. That legislation led to the indictment on federal racketeering charges of the former House speaker and four others, as well as the firing of top executives at FirstEnergy, which is negotiating a “deferred prosecution” agreement with federal prosecutors.

“The state hasn’t had a real, future-focused energy policy for years,” Waggoner added. “Instead, we’re getting these single issue, haphazard bills like S.B. 52 that are being driven by politics rather than informed debate. We need to be talking about a comprehensive energy policy that reduces carbon, reduces energy waste, saves people money and supports communities impacted by Ohio’s move beyond coal. This legislature just proves over and over that they are not interested in that conversation.”

Daniel Sawmiller, the Natural Resources Defense Council’s director of energy policy in Ohio, said Gov. DeWine should veto the bill. “Solar and wind projects are some of the cleanest, least expensive forms of generating electricity today, and the leases for these projects are one of the greatest investment opportunities for Ohio farmers in a generation. But S.B. 52 gives local officials the ability to ban Ohio farmers from participating, and they don’t even have to give the landowners notice they are taking away those property rights,” he said in a reference to the county’s new authority to created the exclusion zones. “This rushed bill simply goes too far.”

Trish Demeter, chief of staff for the Ohio Environmental Council Action Fund, also urged a gubernatorial veto.

“The process laid out in S.B. 52 singles out solar and wind as the only sources of energy generation subject to local processes and approvals, despite extensive opportunity for public comment and careful, required review by the Ohio Power Siting Board,” she said in a statement.

“This unequal treatment hobbles our state’s ability to harness all the benefits of clean energy. Ohioans overwhelmingly support the transition to a clean, renewable energy future. But today, Ohio lawmakers voted to stifle renewable energy development in the Buckeye State once again. Air pollution will continue to harm Ohio families. We will continue to miss out on new tax revenue for Ohio communities, and we will fail to grow renewable energy careers — among the fastest growing job markets nationally — here in Ohio.”