Citizens Action Coalition of Indiana, Inc. v. Southern Indiana Gas and Electricity Company
2017 Ind. App. LEXIS 58
| Ind. Ct. App. | 2017Background
- Vectren petitioned the Indiana Utility Regulatory Commission (IURC) to approve modifications (clean coal technology, CCT) at four coal-fired units (Brown 1 & 2, Culley 3, Warrick) to meet EPA requirements and sought CPCN/financial treatment.\
- Intervenors (Citizens Action Coalition, Sierra Club, Valley Watch) opposed, arguing retirement and replacement (e.g., natural gas) would be more cost-effective long‑term; dispute turned on competing expert economic models.\
- IURC initially approved all projects (First Order), relying primarily on Vectren’s Black & Veatch 10‑year PROMOD modeling and related testimony that retrofitting minimized customer cost and avoided reliability risks.\
- This court in Citizens Action Coal. v. S. Ind. Gas & Elec. Co. (Vectren I) held two SO3‑mitigation projects qualified as CCT under Ind. Code ch. 8.7 and remanded because a Chapter 8.7 CPCN (and findings under I.C. § 8‑1‑8.7‑3(b)) was required.\
- On remand the IURC denied Intervenors’ motion to reopen the record, made explicit findings on the nine statutory factors under I.C. § 8‑1‑8.7‑3(b), and issued CPCNs for the Brown and Culley CCT projects. Intervenors appealed.\
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of IURC findings on remand | IURC failed to explain findings, relied only on Vectren, and ignored contrary evidence so findings are arbitrary and unsupported | Remand required only findings on the §8‑1‑8.7‑3(b) factors; First Order’s extensive factual record remained valid and IURC appropriately relied on that record and Vectren’s evidence | Affirmed — IURC made required factor‑by‑factor findings and was entitled to rely on the existing record and Vectren’s expert evidence |
| Substantial evidence re cost modeling and expert testimony | Intervenors: updated analyses (20‑year model etc.) would show replacement is lower cost; B&V’s 10‑year model is flawed | Vectren/B&V defended 10‑year horizon as reasonable; adjustments did not change conclusions; credibility/weight of experts is for IURC | Affirmed — court will not reweigh experts; substantial evidence supports IURC’s conclusions |
| Denial of motion to reopen the record on remand | New market and cost developments warranted reopening so the IURC could consider material changes | IURC has discretion; remand ordered additional findings not a full retrial; record already contained sufficient evidence to decide CPCN issue | Affirmed — IURC did not abuse discretion in denying reopening; ample existing evidence to assess statutory factors |
| Proper parties on appeal | Intervenors moved to dismiss IURC as an appellee because it is a fact‑finding tribunal, not a party | IURC traditionally enters orders but is not a statutory party to appeals from its own decision | Court granted motion and dismissed IURC as a party on appeal |
Key Cases Cited
- Citizens Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co., 45 N.E.3d 483 (Ind. Ct. App. 2015) (remanded for CPCN findings under Ind. Code ch. 8.7 — "Vectren I")
- N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012 (Ind. 2009) (describing IURC’s fact‑finding role and statutory purpose)
- Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610 (Ind. 1985) (presumption of validity of IURC orders)
- Ind. Gas Co., Inc. v. Ind. Fin. Auth., 999 N.E.2d 63 (Ind. 2013) (standard that appellate court will not reweigh evidence or assess witness credibility)
- Citizens Action Coal. of Ind., Inc. v. Duke Energy Ind., Inc., 44 N.E.3d 98 (Ind. Ct. App. 2015) (discussing IURC discretion denying reopening where record adequate)