Las Vegas Sun

March 28, 2024

Justices hear arguments on whether solar referendum qualifies for ballot

NV Energy Solar Protest Rally

John Locher / AP

Michelle Balistreri and Chandler Gray attend a rally in front of NV Energy on Wednesday, April 22, 2015, in Las Vegas. Hundreds of activists gathered outside NV Energy headquarters in Las Vegas to protest a state cap affecting rooftop solar installations and urge the Legislature to lift it.

Justices on the state’s top court questioned arguments Friday in a case to prevent a SolarCity-backed political group from moving forward with a ballot measure that would restore more favorable electricity rates for its customers. The lawsuit, brought by an NV Energy-backed group, represents one front in a larger debate between the utility and rooftop solar customers over how solar should be valued here.

The ballot measure asks voters to repeal or affirm parts of a law giving the Public Utilities Commission of Nevada authority to increase fees and slash credits for solar customers in a decision last December. In question was whether that ballot measure is a referendum if it asks voters to weigh parts of a statute.

A decision in the case will likely come down to the interpretation of two words: “part thereof.”

Nevada’s Constitution allows citizens to place a petition on the ballot if it asks voters to approve or disapprove — effectively strike down certain language — of “a statute or resolution or part thereof.”

“That’s exactly what this referendum does,” argued Kevin Benson, an attorney for the No Solar Tax PAC, which is being funded largely by SolarCity. “There is nothing piecemeal about this referendum.”

An attorney representing the Citizens for Solar and Energy Fairness, which is being funded by NV Energy and organized labor, said SolarCity’s initiative did not meet the requirements of a referendum. The wording of the ballot measure, he argues, attempts to change the law by striking certain phrases and wording throughout the statute while keeping other parts intact. Accordingly, attorney Robert Eisenberg argued that the ballot measure should be classified as an initiative, which amends law or enacts new law.

“We’re suggesting any ‘part thereof’ simply cannot be taken literally,” Eisenberg said. “It cannot be applied in a manner that allows surgical dissection of a statute (or) surgical dissection of a sentence.”

From a political standpoint, the distinction is significant. Referendums have a more immediate effect. A ballot intiative, on the other hand, would be forwarded to the Legislature for its consideration next year. For months, SolarCity and other rooftop solar installers, through their Bring Back Solar campaign, have worked vigorously to collect signatures for the measure and coalesce support around undoing the rates.

But in March, a lower court dealt it a blow by siding with NV Energy’s group. It ruled that the measure did not qualify as a referendum because it did “not present a yay or nay vote on a part of a statute, but rather systematic changes to various portions and words of the statute in a piecemeal approach.”

SolarCity’s group — the No Solar Tax PAC — appealed the case. In court Friday, Benson argued that the lower court’s interpretation was impracticable. “The district court, by saying that you can’t run a referendum that substantially changes the law, has created a completely unworkable standard,” he said.

He argued that such a standard would create ambiguity about the proper legal threshold for defining a “part” of a statute and would restrict the ability of successfully placing referendums in future cases.

The legal fight is part of an ongoing battle between NV Energy and the solar industry over how rooftop solar should be priced in the state. If successful, SolarCity expects that its ballot measure will reverse a controversial regulatory decision that prompted it to lay off workers and pull its product from the state.

NV Energy wants to keep the new rates, which it argues is a benefit to nonsolar customers, the majority of its rate base. It is fighting back with its own campaign that paints SolarCity as an out-of-state company.

Eisenberg, the lawyer representing the utility-backed group, also asked the court to consider the language used in a 200-word description that would appear on the ballot. He contended it was argumentative and failed to capture the full effect of the law, a sentiment that some of the justices appeared to agree with.

The court is likely to make a ruling in the coming weeks.

Join the Discussion:

Check this out for a full explanation of our conversion to the LiveFyre commenting system and instructions on how to sign up for an account.

Full comments policy