The opinion adds a new hurdle to County Executive Armond Budish’s efforts to establish microgrids throughout the county as back-up power supplies for businesses that want a constant stream of electricity. The concept was pitched as an economic development tool that could encourage companies to move to the county.
As the first step in establishing a microgrid or grids, Budish in March asked County Council to approve legislation that would create a county Division of Public Utilities. County Council has sat on that legislation for months, as it wanted to wait for Yost’s response.
Council President Pernel Jones Jr. did not immediately respond to a message from The Plain Dealer/cleveland.com on Monday about how Council intends to proceed.
But as of Monday afternoon, Council was still studying how the opinion might affect the proposal to create a public utilities division. Council was also seeking clarification about when and how the county would need to obtain permission from cities, Chief of Staff Joe Nanni said.
Budish’s staff said the opinion has little impact on its microgrid plans. That’s because the county had “always intended to create the microgrid with the approval of whatever city we were working with,” county spokeswoman Mary Louise Madigan said.
County Prosecutor Michael O’Malley in April asked Yost’s office to issue the opinion at the request of Councilman Michael Gallagher, who questioned whether Ohio law allowed the county to establish and operate a public utility.
Because Cuyahoga County adopted a charter form of government in 2009, Ohio law generally gives it the same powers that cities have. But there are some limits to that rule — if a charter county exercises those powers in such a way that it causes a conflict with a municipality’s powers, the municipality takes precedence.
O’Malley essentially asked Yost whether establishing a utility would create such a conflict. Yost’s opinion framed the question this way: “Does Cuyahoga County have the power to establish and operate an electric utility within the county when the municipalities within the county have not approved of the county’s operating a utility?”
The answer, Yost said, is “no.”
“Because a municipality has the right to determine which utilities may operate in its territory, along with the right to exclude other utilities from operating in that territory, an attempt by a county to operate a utility within a non-consenting municipality would necessarily create a conflict,” the opinion states.
The county law department, in its own opinion issued in October, stated that the county could legally establish a utility. But it also stated that:
“Unfortunately, given the limited history of chartered counties in Ohio, there is little to no case law on conflicts between the powers of counties and municipalities. It is therefore open to interpretation as to whether two government-run utilities in overlapping service areas would create a conflict.”
Budish’s initial vision for a microgrid, unveiled in 2018, would have established a back-up power supply in downtown Cleveland, using Cleveland Public Power’s authority as a municipal utility company. Those plans have since stalled.
In the meantime, Budish this spring laid out a new vision: establishing microgrids in suburban business hubs, outside of CPP’s reach.
Such a plan would still need to be facilitated by a public utility, so Budish moved to create one at the county-level. Locations under consideration for a suburban microgrid are around Cleveland Hopkins International Airport and NASA, the future Brecksville site of Sherwin-Williams’ research and development facility, and the former Brooklyn site of American Greetings.
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