2011 Ohio 958
Ohio2011Background
- CSP appeals a PUCO order denying authority to sell two generation plants and denying cost recovery; the decision followed CSP's application for an electric security plan filed July 31, 2008.
- R.C. 4928.17(E) requires prior PUCO approval to sell/transfer generating assets; CSP had no immediate sale plan.
- PUCO initially denied transfer authority but granted cost recovery (~$51 million/year); CSP did not seek rehearing on the cost-recovery aspect.
- IEU and OCC intervened; PUCO later reversed on rehearing, removing cost-recovery authority and directing CSP to modify its plan.
- CSP sought rehearing within 30 days of the modification order; the appeal raises jurisdiction and merits questions.
- The Court held it had jurisdiction and upheld PUCO’s denial of both sale authority and cost recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSP preserved its appeal on the sale/transfer denial. | CSP preserved via timely rehearing after adverse order. | PUCO asserts lack of timely rehearing on the sale issue. | CSP preserved; jurisdiction exists. |
| Whether the denial of authority to sell was lawful and not unlawful. | Denying sale authority was premature and unlawful. | PUCO acted within discretion; denial reasonable. | Denial of sale authority was reasonable and lawful. |
| Whether the denial of cost recovery was lawful given lack of demonstrated revenue inadequacy. | If sale is denied, cost recovery should be granted. | Statute does not guarantee cost recovery upon denial of sale. | Denial of cost recovery was lawful. |
Key Cases Cited
- Senior Citizens Coalition v. Pub. Util. Comm., 40 Ohio St.3d 329 (1988) (rehearing timelines and applicability of subsequent orders)
- Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 92 Ohio St.3d 177 (2001) ( rehearing standards and appellate review)
- Util. Serv. Partners v. Pub. Util. Comm., 124 Ohio St.3d 284 (2009) (discretionary review of agency actions; deferential standard)
- Weiss v. Pub. Util. Comm., 90 Ohio St.3d 15 (2000) (agency decision review and cost/price considerations)