Commentary · Data Center Law
Process Risk After the Min-Bill
Min-bill terms are on the books. So are subscribed-capacity schedules. Early August asked a blunter question: when the paper says the power path is “approved,” what still moves?
Key filings and the Ashville opinion are linked below. Current as of August 12, 2026. Informational only — not closing advice, and not a Husch Blackwell publication.
That follows Data Center Law Is a Practice Area Now (July 30). The first piece was about the commercial wall. This one is about the residual on the stamp.
The load-bearing Michigan fact is simple. On August 6, Attorney General Dana Nessel filed an opening brief in the Court of Appeals attacking the Public Service Commission’s ex parte conditional approval of DTE Electric’s special contracts in Case U-21990. The contracts cover 1,383 MW with Green Chile Ventures, LLC, for the Saline-area campus the public record ties to Oracle, OpenAI, and Related Digital. The same week, Michigan Environmental Council, NRDC, and Sierra Club filed their own opening brief through Earthjustice. Great Lakes Renewable Energy Association sits in the consolidated caption as a separate appellant.
Nessel’s brief states the statutory objection cleanly: the Commission read a narrow exemption in MCL 460.6a(3) too broadly. The environmental appellants’ brief asks the same core question in appellate form — did the Commission grant ex parte approval where DTE never showed, on a public record, that costs recovered from customers will not raise cost of service?
What the briefs seek matters. They ask the court to vacate and send the matter back for a contested case. They do not, as filed, ask for an immediate stay. As of August 12, no stay of the December 18, 2025 conditional approval turned up in the Commission releases and press covering the appeal. Treat the order as effective unless a stay issues. The residual worth pricing is how the credit and offtake paper handle remand, release, or reversal — not a fantasy that briefing alone stops the project.
Ohio put three smaller instruments on the table the same week. They are not the same weight as U-21990. They are still real.
On August 7, the Supreme Court of Ohio decided State ex rel. McNamara-Smith v. Grube, 2026-Ohio-3035. A peremptory writ ordered Ashville Fiscal Officer April Grube to certify a referendum petition on Village Resolution No. 06-2026 — a mostly nonbinding EdgeConneX term summary that still carries live pieces, including moratorium suspension for the project. The emergency clause failed R.C. 731.30. A fiscal officer cannot kill a petition by calling the measure “administrative.”
That writ clears a desk. It does not put a measure on the November ballot. The August 5 certification deadline had already passed. Because Grube’s delay caused that, the Court ordered her to certify the petition for the November ballot anyway. The Pickaway County Board of Elections still decides sufficiency, validity, and — if it reaches the point — whether the resolution is administrative. Certification past the fiscal officer is not Election Day.
The same week, Trenton residents filed expedited mandamus in the Ohio Supreme Court (Case 2026-1035) after City Council rejected a charter-amendment petition to bar large data centers (press reports: over 25 MW). Butler County’s Board of Elections verified 336 signatures. Council used 8,197 eligible electors (10% = 820). Petitioners and the Board used votes cast at the last municipal election; the Board reported 1,280 (10% = 128). Three hundred thirty-six clear one line and fail the other. The case was still pending as of August 12.
Trenton is an opposition franchise fight, not a defense of a greenlit utility path. Press also reports a Prologis project already under construction and describes the petition as forward-looking. Ballot qualification is not the same as stopping vested work. Annexation fights are another instrument again.
And on August 5, on AEP Ohio’s application for interim relief, the Public Utilities Commission of Ohio ordered AEP, in Case 26-113-EL-ATA, to require data-center customers to give 180 days’ notice before returning to default service (the Standard Service Offer), and to procure that load alone with the cost assigned to the data-center customer. That order is residual-cost design in AEP territory. It is not a reopening of prior large-load approvals. It is also not, yet, a statewide rule.
Four residuals. Four different machines. When the paper says “MPSC approval,” “PUCO order,” or “village resolution,” ask which machine you bought.
The Michigan stamp
The Commission’s December 18, 2025 conditional approval in U-21990 still runs the commercial baseline. Rehearing and reopen were denied March 27, 2026. August brought appellate briefs, not a new Commission order.
Michigan is running more than one large-load path. Consumers Energy’s general large-load tariff (U-21859) was refused ex parte treatment, tried as a contested case, and finished November 6, 2025 (AG rehearing denied February 19, 2026). DTE took customer-specific special contracts ex parte first (U-21990), then put its general Large Load Provision (U-22061) into contested case after the U-21990 ninety-day directive. “MPSC approval” is a label. It is not one instrument.
MCL 460.6a(1) usually requires notice and hearing before a utility raises rates or changes a schedule in a way that raises cost of service. Section 6a(3) cuts a narrow door: ex parte approval for an alteration or amendment in rates or rate schedules that will not increase cost of service. Whether that door was open here is the statutory fight in the August briefs.
The Commission’s story is not hard to state. Matt Helms, the Commission’s public information officer, told Michigan Advance that conditional approval after review of the unredacted contracts fits “decades of well-established legal precedent,” that the approval carried some of the “strongest consumer protection requirements in the country,” and that the deals are projected to produce $300 million in annual savings for other DTE customers. DTE says it used the established path that lets the Commission approve without a hearing. Helms also said the August briefing covered ground the Commission had already rejected. Treat the savings figure as Commission framing until a court adopts it as fact.
Appellants and the Attorney General say both 6a(3) prongs fail. They say DTE disclaimed that the filing was an alteration of rates or schedules, and that planned investments recovered in rates kill any clean showing that cost of service will not rise. They say the public file was redacted, and that Staff review of unredacted contracts on a private portal under NDA does not build a contested-case record.
Nessel’s brief puts the institutional point this way: DTE “insisted that no other interested parties – namely the Attorney General as the State’s utility ratepayer advocate – should have the opportunity to review further or even ask questions to ensure against cost increases for Michiganders, deviating from the Commission’s default review procedures.”
Both sides read the same statute. For anyone funding against the order, the useful questions are dull ones. Is there a stay? What does the paper do on remand? Does an appellant win mean unwind, or a contested case with most of the commercial deal still standing? Remand is one path. Automatic unwind is not.
Collateral is not statewide law
The briefs also flag a commercial detail most headlines skip. In Consumers Energy’s tariff case (U-21859), the Commission’s default acceptable collateral was a standby irrevocable letter of credit or cash. A parent guarantee was not approved as a general default, though the Commission left room for case-by-case showings. Appellants say that six weeks later, U-21990 allowed a parent guaranty with a letter of credit only as needed based on the parent’s rating — without the U-21859 analysis. Read the orders. Do not take the gap on brief-character alone.
U-22061 remains contested as of August 12. AG expert testimony filed August 4 pushes LOC/cash-style alignment. The company’s proposal still lists parent guarantees among forms at company discretion.
If one Michigan path defaults to LOC or cash and another accepts rated-parent paper, the liquidity difference is part of the price. U-21859 did not rewrite every special contract in the state.
Power-path process risk is also not land-use risk. Settlement-locked local approvals are a second track. Diligence both.
Ashville, Trenton, AEP — different tools
Ashville tests emergency-stamped village referenda under R.C. 731.29–.30. Trenton tests what “10% of the electors” means for a charter amendment. AEP’s order tests who pays when large load falls back on default service. Different denominators. Different leftovers after a win.
Ashville
Resolution No. 06-2026 approved a term summary for a development-and-supply deal with EdgeConneX. Most of it is nonbinding. The live pieces include advisor-cost commitments, suspension of the village data-center moratorium for the project, and best-efforts permits. The emergency section talked about public peace, health, and safety, and said Council needed to move “as soon as possible so that this project is not unnecessarily delayed.”
Under Hasselbach and Bliss (State ex rel. Hasselbach v. Sandusky Cty. Bd. of Elections, 2019-Ohio-3751; State ex rel. Webb v. Bliss, 2003-Ohio-3049), emergency reasons cannot be empty. Delay alone is not enough. The Supreme Court held Ashville’s language parroted the statute and could fit almost any measure. Emergency stamping without project-specific reasons does not lock out referendum.
A fiscal officer also may not refuse certification by deciding the measure is “administrative.” The Court left that merits question for another day. The petition had to move past the desk. That is all the writ decided.
Trenton
When a charter petition needs “10% of the electors,” the fight is which pile of people that phrase counts. Petitioners point to State ex rel. Huebner v. W. Jefferson Village Council and Secretary of State practice keyed to votes cast at the last general municipal election. Council counted eligible electors at the November 4, 2025 municipal election. One pile wants 128. The other wants 820. Pending mandamus will say whether the petition reaches November.
A petitioner win is not automatic. Even a ballot is not a demolition order for work already in the ground. Home-rule text, constitutionality arguments, and vested-rights fights all still sit downstream.
AEP Ohio and the SSO book
After the min-bill wall, PUCO’s August 5 order — granted on AEP’s ask for interim relief — isolates default-service procurement for AEP Ohio under Case 26-113-EL-ATA. If a data-center customer leaves competitive supply and falls back on the SSO, AEP needs notice long enough to buy that load alone, and other SSO customers do not eat the cost (180 days and full cost assignment in that order).
A min-bill schedule does not answer SSO return. This template is AEP territory unless other utilities or the legislature export it. Competitive suppliers have fought long notice periods before. That fight is part of the residual too.
Approved is a word on a page. Fundable is a judgment about what still moves underneath it.
If a court reopens the Michigan path, or a November ballot qualifies a referendum or ban, the dull questions are the right ones. What terminates? What re-prices? Is remand enough? Was there a stay?
Answer those once. Then you know which instrument you hold.