Citizens Action Coalition of Indiana, Inc. v. Southern Indiana Gas & Electric Co.
2015 Ind. App. LEXIS 696
| Ind. Ct. App. | 2015Background
- Vectren sought approval of clean coal projects and cost recovery mechanisms to meet EPA requirements (MATS, NOV, CAA information request).
- Intervenors CAC, Sierra Club, Valley Watch, and OUCC opposed, arguing for replacement of coal units with natural gas; OUCC later reversed opposition.
- Commission approved Mandated Projects and cost deferral; Appellants appealed arguing missing findings on Chapter 8.7 factors and CPCN requirements.
- Evidence showed alternatives (retire/replace units) versus upgrading existing coal units; B&V and Burns & McDonnell analyses favored continued operation with upgrades.
- Court remanded to Commission to make explicit findings under Indiana Code sections 8-1-8.7-3 and related chapters for CCT and federally mandated projects.
- Key issue on appeal was whether the Commission properly applied Chapters 8.7, 8.4, and 8.8 to grant a CPCN and authorize deferrals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Commission fail to make nine-factor findings under 8-1-8.7-3? | Appellants: required 8.7-3(b) findings were omitted. | Vectren: 8.7 findings unnecessary if 8.4/8.8 relied upon; mootness argued. | Remanded to complete 8.7-3 findings. |
| Are the Brown/Culley/Warrick projects CCT under 8-1-8.8 and does that require a CPCN under 8.7? | Appellants: projects meet CCT and trigger CPCN under 8.7. | Vectren: some components fall under 8.8/8.4, not 8.7; 8.7 applies only to sulfur/nitrogen reductions. | 8.7 applies to sulfur/nitrogen controls; some CCT components require CPCN; remand for 8.7 findings on specific controls. |
| Was the Commission’s failure to address the necessity of Culley Unit 2 and project load considerations material? | Culley 2 may be unnecessary per load forecasts; findings needed. | Commission addressed reliability risks and found projects reasonable and necessary. | Not error; findings on Culley 2 unnecessary given evidence of reliability risk. |
| Was Vectren’s delay in filing its application unreasonable and was that issue properly considered? | Delay caused reliability risks; should be examined. | Delay not shown to be material; not necessary to findings. | Not error; court found delay not material to conclusions; no need for findings. |
Key Cases Cited
- Citizens Action Coal. of Ind., Inc. v. Pub. Serv. Co. of Ind., 612 N.E.2d 199 (Ind.Ct.App.1993) (tiered standard of review for IURC orders; substantial evidence required)
- N. Ind. Pub. Serv. Co. v. United States Steel Corp., 907 N.E.2d 1012 (Ind.2009) (IURC as fact-finding body with expertise; order presumed valid)
- Columbus Bd. of Zoning Appeals v. Wetherald, 605 N.E.2d 208 (Ind.Ct.App.1992) (appeal not moot when construction proceeds pending appeal)
- Annexation Ordinance F-2008-15 v. City of Evansville, 955 N.E.2d 769 (Ind.Ct. App.2011) (stay requirements and remonstrance context for mootness)
- Shumaker v. Shumaker, 559 N.E.2d 315 (Ind.Ct.App.1990) (exclusion of statutory factors may be harmless error)
- Helm v. Helm, 873 N.E.2d 83 (Ind.Ct. App.2007) (harmless error when statute requirements satisfied by other actions)
- Jennings Water, Inc. v. Office of Env. Adjudication, 909 N.E.2d 1020 (Ind.Ct. App.2009) (magic words not required if evidence supports conclusion)