The Supreme Court of Ohio today rejected an industrial power company’s claim that state regulators improperly approved AEP Ohio’s current electric service plan.

A unanimous Supreme Court found that One Power Company failed to prove the Public Utilities Commission of Ohio (PUCO) wrongly allowed Ohio Power Company, which does business as AEP Ohio, to enact its fifth electricity security plan.

Writing for the Court, Chief Justice Sharon L. Kennedy explained that One Power argued the approval process was flawed and the PUCO illegally permitted a rider to be included on all customer bills to help pay for AEP’s electric transmission costs. She wrote that One Power did not demonstrate that the PUCO committed any errors that justified overturning the PUCO’s order.

Justices Patrick F. Fischer, R. Patrick DeWine, Jennifer Brunner, Daniel R. Hawkins, and Megan E. Shanahan joined the chief justice’s opinion. Eleventh District Court of Appeals Judge Robert J. Patton, sitting for Justice Joseph T. Deters, also joined the opinion.

Company Objects to Information Restrictions
Electric-distribution utilities such as AEP Ohio must submit a “standard service offer” of all competitive retail electric services necessary to maintain essential electric services to consumers. A utility can meet the requirement through an electric security plan approved by the PUCO.

In January 2023, AEP submitted its fifth electric security plan. One Power intervened in the PUCO proceedings and submitted a request for discovery of AEP documents submitted to the PUCO. AEP interpreted some of Ohio Power’s requests as requiring the disclosure of confidential information. AEP stated that One Power would have to complete a protective agreement to review the documents. To access some of AEP’s materials, One Power would have to agree that in-house employees involved in activities that compete with AEP would be prohibited from reviewing the information.

One Power objected, telling the PUCO that Jereme Kent, One Power’s chief executive officer, was best positioned to present the company’s objections to AEP’s plan. One Power requested that the PUCO require AEP to allow Kent to review documents that AEP claimed were confidential. A PUCO attorney examiner denied the review, and the PUCO conducted a hearing on the matter. The PUCO affirmed the denial of One Power’s discovery request.

Transmission Fee Challenged
One Power also argued the PUCO should not have allowed AEP to continue its basic transmission cost rider (BTCR), which is a fee all customers have been required to pay since 2015. One Power argued the PUCO should have made the rider “bypassable,” which would have allowed customers who shop for retail electricity services to avoid paying the charge.

The PUCO rejected One Power’s objections to the plan, and One Power appealed to the Supreme Court.

Supreme Court Analyzed Objections
Chief Justice Kennedy explained that One Power argued that precluding Kent from complete access to AEP documents harmed its ability to advance its interests during the PUCO’s proceedings. However, she wrote, One Power has not explained how the denial of its request caused it “particularized harm,” and has not specified what information it needed from AEP to facilitate its case.

“One Power surely knows what its interests are and what information it needed from AEP Ohio to protect those interests,” the opinion stated. “Yet, One Power offers only generalized claims of harm that speculate about how it would have benefited from having the opportunity to share all of the discovery with Kent.”

Turning to the transmission rider, the Court noted that One Power raised several arguments against the commission’s approval of the charge to all customers. The commission maintained that charging all customers is justified because it is responsible for providing reliable transmission services to both shopping and non-shopping customers. The PUCO first authorized the nonbypassable charge to all AEP customers when it approved the utility’s third electric security plan in 2015.

The PUCO also noted that changing the rider to allow shopping customers to avoid payment would be considered a “complex rate design issue,” which would involve investigating a multitude of considerations. An AEP executive testified that the switch could have unknown effects on customers’ bills, add complexity to a customer’s decision-making process when considering whether to shop for electric services, and potentially impact federally approved transmission agreements.

“In view of these factors, we concluded that the commission did not abuse its discretion in declining to make the basic-transmission-cost rider bypassable,” the Court concluded.

2024-1142. In re Application of Ohio Power Co., Slip Opinion No. 2025-Ohio-3034.

View oral argument video of this case.

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