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AEP Ohio filed an application seeking approval from the Public Utility Commission of Ohio of the agreement it filed pursuant to R.C. 4828.47 to enter into an agreement having a term of three years or more with a mercantile customer for the purpose of constructing a customer-sited renewable energy resource in this state that will provide a material portion of its electricity requirements.

Excerpts from Commission Order:

“C. Commission Conclusion 

{¶ 19} The Commission finds that AEP Ohio’s application is consistent with the plain language of R.C. 4928.47. As noted above, R.C. 4928.47 permits an EDU to enter into an agreement, subject to Commission approval, having a term of three years or more with a mercantile customer for the purpose of constructing a customer-sited renewable energy resource in this state that will provide a material portion of its electricity requirements. The statute also provides that any direct or indirect costs associated with the customer-sited renewable energy resource will be paid by the EDU and mercantile customer. 

{¶ 20} This is a matter of statutory interpretation. As the Supreme Court of Ohio has stated numerous times, the Commission “is a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute.” Penn Central Transportation Co. v. Pub. Util. Comm., 35 Ohio St.2d 97, 298 N.E.2d 97 (1973). In construing a statute, our paramount concern is legislative intent. In determining legislative intent, the Commission first looks to the plain language in the statute and the purpose to be accomplished. If the meaning of the statute is unambiguous and definite, it must be applied as written, and no further interpretation is necessary. WorldCom, Inc. v. City of Toledo, Case Nos. 02-3207-AUPWC, 02-3210-EL-PWC, Opinion and Order (May 14, 2003), citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Ed., 74 Ohio St. 543, 660 N.E.2d 463 (1996). In order to determine the intent of the General Assembly in enacting legislation, we must give effect to the words used in the statute. However, where the words of the statute are ambiguous, a court is charged with construing the language in a manner that reflects the intent of the General Assembly by using the factors described in R.C. 1.49 and additional Supreme Court of Ohio precedent. WorldCom, Inc. v. City of Toledo, Case No. 02-3207-AU-PWC, Opinion and Order (May 14, 2003). 

{¶ 21} After careful consideration of all the language of the statute and the responsive comments submitted by interested stakeholders, we note that there is very little ambiguity in regard to the ultimate objective of this statute. However, as explained further in this Finding and Order, even if there is ambiguity as alleged by some parties in this case, the legislative intent is easily discerned by various factors, including the General Assembly’s recent passage of energy legislation. Am. Sub. House Bill 15. The Commission routinely monitors pending legislation that may impact the regulated entities falling under our jurisdiction, which One Power and OnSite specifically requested that we do in this proceeding. HB 15, which was pending at the time comments were submitted, was signed by Governor DeWine on May 15, 2025. That legislation, as approved, repealed 4928.47 but specifically noted that EDUs “may supply behind the meter electric generation service provided the facilities the utility intends to use to supply that service were filed with the Commission pursuant to this section” prior to March 31, 2025. R.C. 4905.311, eff. Aug. 14, 2025. The Commission observes both of these applications were filed in February of this year. Accordingly, we note this fact bolsters our later findings regarding the intent of the legislature to permit these types of arrangements, as well as for AEP Ohio to own the underlying asset. 

{¶ 22} While OMAEG, RESA, OCC, and One Power argue that the statute merely permits an EDU to construct, but not own, the underlying asset, this reading of the statute ignores all but the word “constructing.” Ohio law expressly provides that “[i]n enacting a statute, it is presumed that . . . [t]he entire statute is intended to be effective.” R.C. 1.47(B). “No part [of a statute] should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.” State v. Polus, 145 Ohio St.3d 266, 2016-Ohio-655, 48 N.E.3d 553, ¶ 12. Fundamentally, we agree with AEP Ohio that the separate terms contained within the statute contemplate a relationship between the EDU and the customer that may go beyond simply “constructing” the generation asset. For example, the fact that the statute expressly states that “[a]ny direct or indirect costs, including costs for infrastructure development or generation, associated with the in-state customer-sited renewable energy resource shall be paid for solely by the utility and the mercantile customer or group of mercantile customers.” If we were to accept the intervenors’ argument and find that the statute only permits an EDU to construct the asset, there would be no resultant costs for “infrastructure development or generation.” As noted by AEP Ohio the Commission has “no authority to read an explicit statutory provision out of the Revised Code.” Elliot v. Durrani, 171 Ohio St.3d 213, 2022-Ohio-4190, 216 N.E.3d 641, ¶ 23. 

{¶ 23} Not only do OCC, RESA, OMAEG and One Power dispute AEP Ohio’s interpretation of the plain language of R.C. 4928.47, they claim that arrangements submitted pursuant to this statute are also subject to the requirements of R.C. 4928.17. As noted by AEP Ohio, it is a basic principle of statutory construction that “[i]f a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.” R.C. 1.51. See also Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 26 (where Supreme Court held that “utilizing the rules of statutory construction contained in [R.C. 1.51 and 1.52], a specific statute, enacted later in time than a preexisting general statute, will control where a conflict between the two arises”). R.C. 4928.17 generally prohibits EDUs from participating in competitive retail electric service unless approved by the Commission as part of a corporate separation plan, whereas R.C. 4928.47 specifically addresses the type of contractual arrangement at issue in this proceeding. Moreover, R.C. 4928.47 was enacted in 2019 while R.C. 4928.17 was enacted in 2000. Accordingly, under R.C. 1.51 and 1.52, as well as applicable Supreme Court of Ohio precedent, if there is any discrepancy between R.C. 4928.47 and R.C. 4928.17, then R.C. 4928.47 must control as the more specific and later-enacted statute. 

{¶ 24} We are not persuaded that an express exemption carving R.C. 4928.47 out from the requirements under R.C. 4928.17 is required, as suggested by RESA. As noted above, R.C. 1.51 directs that the special provision “prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.” 

{¶ 25} According to case law cited by parties in their comments and the plain language of R.C. 1.51 and 1.52, statutory provisions should be construed so as to give full force and effect to each and all provisions when possible. See, e.g., State v. Pribble, 158 Ohio St.3d 490, 2019-Ohio-4808, 145 N.E.3d 259, ¶ 12. AEP Ohio goes further to claim that the statutes can be read in harmony if it is determined that R.C. 4928.17 does not apply to the specific types of arrangements contemplated by R.C. 4928.47. Regardless, we find that the General Assembly’s specific authorization of customer-sited renewable resources under R.C. 4928.47 does not conflict with the corporate separation statute. The Commission, believing provisions of R.C. 4928.17 are reconcilable with the provisions of R.C. 4928.47, finds the Agreement appropriate and in accordance with the law as contemplated by the General Assembly.

{¶ 26} We also do not find OMAEG’s comments alleging discrimination to be persuasive. ADS’s comments on this issue are especially informative, where ADS noted the Agreement aligns with Ohio’s policies set forth in R.C. 4928.02, including the policies to “[e]nsure diversity of electricity supplies and suppliers, by giving consumers effective choices over the selection of those supplies and suppliers and by encouraging the development of distributed and small generation facilities” and “[e]nsure effective competition in the provision of retail electric service by avoiding anticompetitive subsidies flowing from a noncompetitive retail electric service to a competitive retail electric service or to a product or service other than retail electric service, and vice versa, including by prohibiting the recovery of any generation-related costs through distribution or transmission rates.” R.C. 4928.02(C) and (H). (ADS Comments at 4). Ultimately, it is ADS’s decision as to whether it pursues participation in an agreement filed pursuant to R.C. 4928.47 and we will not insert ourselves into its decision to do so, so long as the Agreement satisfies the statutory criteria, as we find it does in this proceeding. 

{¶ 27} On a final note, despite AEP Ohio’s commitment to ensure that project costs are accounted for through a transparent methodology and process, as outlined in the Agreement, we do find merit in OCC’s suggestion requiring a periodic audit to ensure that other customers are not directly or indirectly bearing the costs of the Agreement, in contravention with the requirements of R.C. 4928.47. Accordingly, we direct Staff to initiate proceedings in the future to conduct periodic audits for compliance with the provisions of R.C. 4928.47. Further, although the concerns regarding AEP Ohio’s borrowing ability or financing costs do appear to be premature at this stage, parties will be able to evaluate actual data in a future review to determine compliance with R.C. 4928.47. We will not withhold approval of the Agreement simply because intervening parties speculatively believe that debt costs paid by customers other than ADS could be impacted. AEP Ohio has committed to “making ratepayers whole” if an adjustment becomes necessary and the Commission will allow for routine audits to ensure the Company is remaining true to its word. As such, AEP Ohio will be required to file an application for the periodic review of costs attributable to the Agreement. 

{¶ 28} Given the comments of both AEP Ohio and ADS, we find that the Agreement satisfies the criteria set forth in R.C. 4928.47. Namely, the Agreement exceeds the three-year threshold; ADS is a mercantile customer, as defined in R.C. 4928.01; the sited resource will be located on ADS’s property in Johnstown, Ohio; and will provide ADS with a material portion of its electricity requirements. Further, given AEP Ohio’s commitments toward cost transparency and the additional auditing requirements ordered by the Commission, we believe the Agreement and monitoring processes that will be in place will be effective to ensure there is no recovery of direct or indirect costs related to the Agreement from any other customer. 

{¶ 29} As a final matter, to the extent we have not expressly addressed an argument raised in the comments in this Finding and Order, it has been considered and rejected. We also find that, given no material question of fact was raised in the comments, no hearing is required in this matter. Accordingly, we are persuaded that the Agreement conforms to the plain language of the statute, as well as its legislative intent, and, as such, should be approved.”

Finding & Order (05/28/2025)

(Finding & Order ordering that the Commission approves the application filed by Ohio Power Company for approval of an agreement under R.C. 4928.47.) 

25-0133-EL-AEC (02/12/2025)

(Ohio Power Company – AEC-Application To Revise Or Cancel A Contract)