Cleveland Public Power can buy electricity from Brooklyn landfill solar farm, Ohio

COLUMBUS, Ohio — A divided Ohio Supreme Court on Tuesday ruled that Cleveland Public Power can buy electricity generated from a Brooklyn solar farm, though the city-owned utility must now prove that it didn’t buy the power solely to sell it to the city of Brooklyn.

The court’s ruling marks at least a partial win for CPP over FirstEnergy’s Cleveland Electric llluminating Co., which argued that the Ohio Constitution only allows municipal utilities to buy enough power from outside sources to serve the needs of its residents.

However, the Supreme Court’s majority opinion, written by Justice Melody Stewart, sent the case back to Cuyahoga County Common Pleas Court, stating that “reasonable minds could differ” on whether CPP is unconstitutionally supplying Brooklyn with electricity.

Since 2017, CPP has bought all the electricity generated by a $10 million solar farm at the closed 75-acre Brooklyn landfill, a project mostly paid for by Cuyahoga County. While the city of Cleveland says it uses that energy to power 16 county-owned buildings, a CPP transmission line from the solar array is also used to power several municipal buildings in Brooklyn, which use CPP power at a price 5% below what the state allows CEI to charge.

The Ohio Constitution allows municipal utilities to sell “surplus” electricity outside of the city up to 50% of the total amount of power it supplies. CPP power sales outside of Cleveland total about 4% of the electricity it sells to city residents.

But the state constitution also says that a municipal utility can’t buy electricity from outside sources solely to resell it to customers beyond city limits.

CEI argued that ruling means CPP can only buy as much power from the Brooklyn solar farm as Cleveland customers need. The fact that CPP is selling power to the city of Brooklyn, CEI asserts, proves that CPP is creating an “artificial surplus” and is wrongly buying more power than is needed to meet the exact needs of city customers.

Stewart, a Cleveland Democrat, disagreed with CEI’s argument that municipal utilities can’t buy more electricity than what city residents use. In her ruling, Stewart noted that the city is required by the region’s electric grid manager to buy options on more electricity in case of power outages, demand spikes due to weather conditions, and other conditions.

“More importantly,” Stewart continued, the Ohio Constitution “specifically authorizes a municipality to sell excess surplus product extraterritorially.” She quoted snippets of debate from the 1912 Ohio Constitutional convention showing that the framers intended to allow municipal utilities to sell any surplus to outside customers.

Stewart’s opinion was joined by Republican Chief Justice Maureen O’Connor. Democratic Justice Michael Donnelly also concurred with Stewart.

The other four justices on the state’s high court dissented, but for different reasons.

Justice Pat DeWine, in a partial dissent joined by fellow Republican Pat Fischer, wrote that he, like the majority, would also send the case back to the trial court. But DeWine said he would order the court to issue a declaratory judgment in favor of CEI because “Cleveland may not resell electricity that it has purchased.”

Republican Justice Sharon Kennedy, meanwhile, wrote in a dissent that she would grant summary judgment in favor of CPP. Kennedy wrote that CPP is allowed under the Ohio Constitution’s home-rule provision to sell power to outside customers, and there’s nothing in the constitution prohibiting municipal utilities from selling their products outside city limits, even if it’s a surplus of electricity is intentionally created.

Democratic Justice Jennifer Brunner, in a separate dissent, stated she would also grant summary judgment in favor of CPP. Brunner wrote that there’s no evidence that CPP entered into an agreement to buy solar power only to provide electricity to Brooklyn.

CEI is reviewing the court’s ruling, according to FirstEnergy spokeswoman Jennifer Young.

Cleveland.com has reached out to CPP for comment.