Ohio Supreme Court decision clears the path for Preble County solar farms

Two Preble County solar farms got the go ahead from Ohio’s Supreme Court last week, but the case may prove to be more consequential than the dispute it settled. Writing for the majority, Justice Pat DeWine staked out a position that seemingly asserts judicial authority over state agency decisions.

It reiterates and extends a doctrine established in a case last year known as TWISM. That decision held the court’s interpretation of statutes supersedes that of an executive agency. The latest case added that the court has the final say on interpreting an agency’s rules as well.

Chevron

In the upcoming U.S. Supreme Court term, the justices will hear a case challenging a decades-old precedent known as Chevron deference. That idea arose from a 1980s case in which the Natural Resources Defense Council challenged an EPA rule change. The Reagan administration’s EPA adopted a new definition making it easier for companies like Chevron to build power plants.

The Supreme Court sided with Chevron and the EPA. Because the underlying statute was ambiguous, the justices reasoned, the court should defer to the agency’s interpretation so long as it’s reasonable. It’s one of the most significant decisions in U.S. administrative law, and also one of the most controversial. Notably, although Chevron handed a conservative administration a victory, the underlying doctrine has rankled conservatives ever since. By granting deference to executive agencies, the ruling empowers presidents to take greater action unilaterally.

As a federal case, Chevron isn’t a controlling precedent for Ohio courts. But last year, the state Supreme Court took up a case that definitively rejected the idea.

A startup called TWISM Enterprises applied to the Ohio Board of Registration for Professional Engineers and Surveyors to provide engineering services. The board rejected their application because the company’s manager was listed as an independent contractor rather than an employee. The appeals court deferred to board, and TWISM challenged that point in the Supreme Court.

“The judicial branch is never required to defer to an agency’s interpretation of the law,” Justice DeWine wrote for the majority in that case.

After parsing the requirements of a manager, the court ruled TWISM should get its certificate to operate. But that decision almost felt like an afterthought. The more important determination was the court’s rejection of agency deference.

Preble’s solar farms

The Preble solar farms decision, also written by DeWine, follows a similar model. Anti-solar groups raised objections to the Preble County solar farms’ noise, appearance, setbacks and environmental impacts. In each instance the court considered those complaints and found they lacked merit.

But the more important holding appears to be a further rejection of agency deference.

DeWine’s opinion invokes a case similar to Chevron, called Auer. That precedent directs federal courts to follow an agency’s interpretation when it comes to ambiguities in their own rules, as opposed to statutes, like Chevron.

“But the same separation-of-powers principles that led us to reject Chevron-style deference in TWISM also apply to deference of the Auer variety,” DeWine wrote.

“When a court defers to an agency’s interpretation of its own regulation,” DeWine went on, “it allows the agency to assume the legislative power (the rule drafter), the judicial power (the rule interpreter), and the executive power (the rule enforcer).”

Instead, DeWine wrote, it’s the court’s job to untangle any ambiguities. Justices may consider the agency’s interpretation to the extent that it’s persuasive, but the court isn’t bound by it.

Still, DeWine insisted the court’s role has limits. It can only intervene if an agency’s actions are “unlawful or unreasonable,” he wrote. The court isn’t meant to reconsider the agency’s factual findings, but rather to determine if it properly exercised its authority.

Although the court didn’t second guess the agency’s collected evidence about wildlife or stormwater, and it agreed with the agency’s findings, its “unlawful or unreasonable” analysis dives deep into the finer points of agency decision making. In so doing, the decision claims a significant role for the court going forward.

Implications

On the other hand, judicial review has been a baseline assumption since Marbury v. Madison. Capital University law professor Brad Smith downplayed the ruling’s impact. He described it as a natural progression in light of last year’s TWISM ruling. Smith said the explicit rejection of Auer-style deference was significant, but otherwise the case was pretty run of the mill. He added it’s interesting how substantial a burden plaintiffs will face in showing that an agency operated incorrectly.

But the court’s liberal wing expressed misgivings about the decision. Although Justice Jennifer Brunner agreed with the end result, she objected to the majority bringing in a discussion of agency deference.

In a concurring opinion, she wrote the court should’ve simply considered whether “the board’s decisions were manifestly against the weight of the evidence.” But bringing in a discussion of agency deference, she wrote, is a “distraction.” Looking ahead, Brunner argued the decision doesn’t establish a precedent.

“No party asks us to employ or denounce agency-interpretation deference regarding a statute or regulation,” she wrote. “Because the discussion related to TWISM in the majority opinion does not apply to the facts and legal arguments made here, it does not create legal precedent.”

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