Nevada Supreme Court raises concerns over rooftop solar ballot referendum

CARSON CITY — Nevada Supreme Court justices raised numerous concerns Friday about a proposed ballot referendum that would restore net metering to more financially viable rates that existed prior to Jan. 1.

The court heard arguments for an hour on whether Question 5 is a proper referendum on a measure passed by the 2015 Legislature and as such qualifies for the Nov. 8 general election ballot. Justices also asked whether the description of the referendum’s effect on the petition signed by voters is misleading, which could also disqualify it from the ballot.

But there was no clear indication how the seven-member court will rule. A ruling will be issued in the next several weeks.

The ballot access battle pits the solar industry, primarily SolarCity, against NV Energy, the Berkshire Hathaway-owned electric utility that operates as Nevada Power in Southern Nevada.

The pro-solar group, the Bring Back Solar Alliance, is funded entirely by SolarCity. The group fighting the measure, Citizens for Solar and Energy Fairness, is backed financially primarily by the utility company.

If the court upholds the measure as a referendum, voters will have a say on whether Nevada’s net metering rates and policies should revert to their pre-2016 levels, which were much more financially viable for the rooftop solar industry and its residential customers.

If the court rules that the proposal is not a referendum, but instead should be filed as an initiative petition, voters would not be able to weigh in on the controversial issue until 2018, if at all. The rooftop solar industry would have to pursue a new petition and collect signatures from registered voters. If successful, the measure would first go to the Legislature in 2017. If the Legislature failed to approve the proposal, it would go to the voters in 2018.

During the oral arguments, Kevin Benson, the attorney representing the rooftop solar coalition, said a March court ruling by Carson City District Judge James Russell was flawed in several ways.

Russell ruled that the referendum proposes “a substantial change to the law” and not a “yay or nay” vote on a statute. Because the measure proposes to amend a state law, the pro-solar coalition needs to submit an initiative petition not a referendum, he said in his ruling.

If Russell’s decision is not overturned, Benson said, it will severely restrict the public’s ability to use the referendum process.

Benson said the portions of Nevada law dealing with net metering are up for a vote by the public in the referendum. Because references to the issue are found throughout state law, there are multiple sections identified in the ballot measure that the rooftop solar group wants repealed, he said.

“There is nothing piecemeal about this referendum,” Benson said.

The state constitution states plainly that people can repeal any part of a piece of legislation, he said.

Attorney Robert Eisenberg, representing the solar fairness group, said the sections of the law the pro-solar group wants removed are a wholesale amendment that should be addressed through an initiative petition. The referendum would produce an absurd result if the net metering sections of the law were removed, Eisenberg said.

He also challenged the description of effect, calling it not ambiguous but “affirmatively misleading.”

However, Benson argued that the description of effect is accurate. The concerns raised by the other side are based on speculation, he said.

The solar industry sees the referendum as essential to bringing the industry and its jobs back to Nevada.

Stuck in the middle are 32,000 primarily residential rooftop solar customers who thought their rates would remain stable when they purchased their systems through 2015.

Contact Sean Whaley at swhaley@reviewjournal.com or 775-461-3820. Find him on Twitter: @seanw801