Process Risk After the Min-Bill

Filings and the Ashville opinion are linked below. Current as of August 12, 2026. Informational only — not closing advice.

This follows Data Center Law in Ohio and Michigan (July 30). The first piece covered tax, utility, and zoning disputes. This one covers the risks that remain after approval.

Start with the Michigan appeal. 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?

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. Review how the financing and power-purchase agreements handle remand, release, or reversal. Briefing alone does not stop the project.

Three Ohio proceedings raised narrower questions the same week.

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). The 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 concerns residents’ ability to put a proposed ban on the ballot. 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 yet another instrument.

And on August 5, on AEP Ohio’s application for interim relief in Case 26-113-EL-ATA, the Public Utilities Commission of Ohio ordered AEP to require data-center customers to give 180 days’ notice before returning to default service (the Standard Service Offer). The order also directs AEP to procure that load alone, with the cost assigned to the data-center customer. That order assigns default-service costs in AEP territory. It leaves prior large-load approvals in place and does not yet apply statewide.

These proceedings leave different risks. Identify what each “MPSC approval,” “PUCO order,” or “village resolution” decides and what remains open.

Michigan utility approvals and the appeal

The Commission’s December 18, 2025 conditional approval in U-21990 still governs the deal. The Commission denied requests for rehearing and reopening on 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.

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,” and that the approval carried some of the “strongest consumer protection requirements in the country.” He said 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.

The 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. Anyone financing a project under the order should ask: Is there a stay? What do the contracts require 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. The 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 to check how the briefs describe that difference.

U-22061 remains contested as of August 12. AG expert testimony filed August 4 calls for collateral terms based on letters of credit or cash. 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.

Review utility approvals and land-use approvals separately. Local approvals secured through settlements raise their own risks.

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. A win resolves a different question in each proceeding.

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 invoked 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 dispute turns on who that phrase counts. The 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. The first count requires 128 signatures. The second requires 820. The pending mandamus case will decide 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, constitutional arguments, and vested-rights disputes would still need resolution.

AEP Ohio and default-service costs

PUCO’s August 5 order, granted on AEP’s request 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).

Minimum-bill terms do not settle the cost of returning to default service. This order applies to AEP territory unless other utilities or the legislature adopt the approach. Competitive suppliers have fought long notice periods before. That dispute adds another risk.

An approval alone does not make a project fundable. Lenders still need to assess what an appeal or further proceeding could change.

If a court reopens the Michigan path, or a November ballot qualifies a referendum or ban, ask what the contracts require. What terminates? What re-prices? Is remand enough? Was there a stay?

Those answers show what the approval is worth to the deal.