The OELC has just filed a motion at the Public Utilities Commission of Ohio opposing AEP Ohio’s request for a waiver of its 2009 solar energy requirements for 2009. Senate Bill 221, among other things, requires electric utilities to obtain 0.004 percent of their energy from solar resources in 2009, and the percentage increases over time. The goal of the solar provision is to promote the development of more solar generation in Ohio.
However, AEP is arguing that it has been unable to meet these modest solar energy benchmarks because of several economic factors beyond its control. The company wants the Commission to grant a waiver of its obligations for 2009.
Under the law, an applicant must meet a very high burden in order for the Commission to grant its waiver request. R.C. 4928.64(C)(4) provides that a utility must make a showing of force majeure in order to receive a waiver. A force majeure is usually defined in contract law as an “uncontrollable” force or an “act of God” that makes compliance impossible. It’s a high standard, and Ohio courts have traditionally held that high prices and other economic factors don’t satisfy the standard.
“We’re not convinced that AEP Ohio has made a good faith attempt to meet the requirements of S.B. 221, and we’re certainly not convinced that it has made a showing of force majeure,” said Will Reisinger, Staff Attorney for the OELC. “Consequently, we don’t think the Commission should grant their waiver request.”
This case is more important than AEP Ohio’s application though. In effect, by granting AEP’s request, the Commission would set a bad precedent for future waiver applications. “By granting this waiver request pursuant to its force majeure power, the Commission would open the door for utilities to avoid their renewable generation obligations for a myriad of reasons,” said Reisinger.