FirstEnergy lands Ohio Supreme Court victory in appeal over energy efficiency programs

Client(s) FirstEnergy Corp.

Jones Day represented FirstEnergy Corp. and its three Ohio utilities, Ohio Edison Company, The Cleveland Electric Illuminating Company, and The Toledo Edison Company, in regulatory proceedings before the Public Utilities Commission of Ohio ("PUCO") in connection with FirstEnergy's energy efficiency and peak demand reduction portfolio plans. After a lengthy and contested hearing, the PUCO approved FirstEnergy's portfolio plans; however, in so doing, modified the plans to implement an overall "cost cap" for the three utilities' portfolio plans based on a proposal submitted by its staff just prior to the evidentiary hearing. FirstEnergy argued that the imposition of such cap was unlawful because, among other things, it exceeded PUCO's statutory authority. The PUCO disagreed, and FirstEnergy appealed to the Ohio Supreme Court.

In an opinion authored by the chief justice, the Supreme Court sided with FirstEnergy, holding that the PUCO had no express or implied authorization in the Ohio Revised Code to impose a limitation on FirstEnergy's recovery of costs incurred in order to meet its statutory benchmarks. The court reversed the PUCO's decision and remanded the case for approval of FirstEnergy's portfolio plans without the cost cap.

In re Application of Ohio Edison Co., Slip Opinion No. 2019-Ohio-4196