Does Ohio’s New Clean Energy Amendment Constitute a Monopoly?

Less than one week after Ohioans approved state Issue 2 — the so-called anti-monopoly amendment that prohibits economic interests from being written into the state constitution — the Ohio Ballot Board will take its first look at a citizen-proposed measure that might run afoul of the new law.

Issue 2, sponsored by the legislature, prohibits specifying a tax rate or conferring a commercial interest, right, or license that’s not available to similarly situated entities.

That last part could affect the Ohio Clean Energy Amendment, a proposed constitutional amendment that calls for more than $14 billion in spending on alternative energy research and infrastructure projects and directs $65 million a year back to the group proposing the measure.

The Ohio Clean Energy Amendment would require the state to spend $1.3 billion each year for 11 years on infrastructure, research and site development for solar, wind, geothermal and other alternative energy sources.  The money would come from state-backed general obligation bonds.

The money would be divvied up by the Ohio Energy Initiative Commission — a limited liability company registered in the state of Delaware that has made none of its investors publicly known.

The commission would receive $65 million annually for “operational funds,” and state lawmakers could not influence or intervene in the commission’s process for awarding clean energy grants.

Rep. Mike Curtin, the Columbus-area Democrat who jointly sponsored Issue 2, said the clean energy plan was exactly what he and state lawmakers wanted to keep out of the constitution. The clean energy group has submitted similar amendments since 2012, but none have qualified for the statewide ballot.

Curtin said lawmakers had been talking for years about how to prevent economic interests from amending the constitution to their benefit, and the marijuana legalization amendment proposed by political action committee ResponsibleOhio pushed them to act in June. The marijuana amendment, Issue 3, failed in last week’s election.

“The irony of all this is these guys more than ResponsibleOhio prompted us to get the discussion going, and now here they are,” Curtin said.

Curtin does not know who is backing the clean energy measure. None of the five petitioners listed on the proposed amendment could be reached Monday. Phone calls to McTigue and McGinnis, the law firm that has represented the petitioners in past efforts, were not returned Monday.

Jack Shaner of the Ohio Environmental Council said his group is focused on ensuring Ohio continues with its renewable energy standards program and he doesn’t know who is behind the clean energy amendment.

“It’s got zero support. There are five petitioners of unknown pedigree. It’s hard to take this seriously,” Shaner said.

The Ballot Board, a bipartisan panel led by Ohio Secretary of State Jon Husted, decides whether an initiative meets the criteria set by Issue 2, which would put an additional question on the ballot first asking voters to approve the economic benefit before voting on the measure itself.

The Ballot Board will not review the possible economic benefits within the Ohio Clean Energy Amendment when it meets Tuesday.

But the board will decide whether the measure itself contains only one amendment or multiple amendments, Husted spokesman Joshua Eck said. If the amendment is deemed one issue, petitioners can begin collecting the 305,591 signatures of registered Ohio voters required to qualify the issue for the statewide ballot.

Eck said the board would consider the effect of Issue 2 on the measure if petitioners gather enough valid signatures and Husted certifies them.

Issue 2 becomes part of the Ohio Constitution later this month. The amendment does not specify when the Ballot Board is supposed to examine proposed amendments, but says the new law applies to amendments certified for the ballot.

Eck said the secretary could set a special meeting after certifying the required signatures or the board could review the matter when it sets ballot language.

By Jackie Borchardt, www.cleveland.com

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