NIPSCO Industrial Group v. Northern Indiana Public Service Company
78 N.E.3d 730
Ind. Ct. App.2017Background
- NIPSCO is a public gas utility serving northern Indiana; Industrial Group is a coalition of large industrial NIPSCO customers.
- Indiana’s TDSIC statute (Ind. Code ch. 8-1-39) lets utilities submit a Section 10 seven-year plan for transmission/distribution/storage projects, approval of which makes projects eligible for recovery via periodic Section 9 tracker updates.
- A 2013 NIPSCO seven-year gas plan was approved by the Commission; Industrial Group initially appealed but later dismissed that appeal.
- After an appellate decision (Nipsco Indus. Grp.) found an earlier NIPSCO electric seven-year plan lacked sufficient specificity for years 2–7, NIPSCO submitted TDSIC-3 to add detail and obtain Commission reapproval of project groups and planning criteria; TDSIC-3 was approved and not appealed.
- NIPSCO filed TDSIC-4, providing more detail and using the ascertainable planning criteria approved in TDSIC-3; the Commission approved TDSIC-4 including multiple-unit project categories (some specific assets, some identified only by planning criteria).
- Industrial Group appealed the TDSIC-4 approval, arguing that multiple-unit categories lacked the required particularity and that Section 9 updates cannot add projects or broaden the approved plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commission erred by approving multiple-unit project categories in a Section 9 update when specific projects weren’t identified | Industrial Group: Multiple-unit categories are too vague; Section 9 updates cannot add or designate projects that weren’t sufficiently specified in the seven-year plan | NIPSCO/Commission: Multiple-unit projects were authorized because they are selected using ascertainable planning criteria previously approved in TDSIC-3; Section 9 updates may reflect cost/identification changes for previously approved categories | Court: Affirmed — approval was proper because projects were chosen under planning criteria already approved in TDSIC-3, so they were not "new" projects for Section 9 purposes |
| Whether Section 9 updates may add new projects or new planning criteria not in the original Section 10 plan | Industrial Group: Section 9 cannot add previously unlisted projects or new criteria; doing so would bypass Section 10 requirements | Commission/NIPSCO: In this unique procedural posture (prior Commission approval later called into question), the TDSIC-3 approval established the operative plan/criteria used for later updates | Court: Section 9 updates should not add new projects or new criteria; but here TDSIC-3 (post-Electric decision) supplied the approved criteria, so TDSIC-4 did not improperly add new projects or criteria |
| Whether Commission improperly presumed eligibility for undefined future projects | Industrial Group: Commission impermissibly shifted burden to intervenors by presuming eligibility for undefined projects | Commission/NIPSCO: No presumption; projects must meet ascertainable planning criteria and be later identified through updates | Court: Rejected plaintiff’s claim — no improper presumption because eligibility depends on earlier-approved planning criteria and subsequent application of those criteria |
| Whether cost increases in TDSIC-4 improperly expanded the scope of the approved seven-year plan | Industrial Group: $20 million increase and reclassifications unlawfully expanded the plan beyond what Section 10 authorized | NIPSCO/Commission: Cost updates and reclassifications reflect changed estimates and identification within previously approved project groups | Court: Cost increases allowed where they reflect changes to previously-approved improvements identified by the approved planning criteria; affirmed Commission approval |
Key Cases Cited
- Nipsco Indus. Grp. v. N. Ind. Pub. Serv. Co., 31 N.E.3d 1 (Ind. Ct. App. 2015) (7-year plan must identify projects with sufficient specificity for years 2–7; Commission may not presume eligibility for undefined projects)
- Indiana Gas Co. v. Ind. Util. Regulatory Comm’n, 75 N.E.3d 568 (Ind. Ct. App. 2017) (Section 9 updates do not authorize addition of new projects not designated in original Section 10 plan)
- N. Ind. Pub. Serv. Co. v. U.S. Steel Corp., 907 N.E.2d 1012 (Ind. 2009) (Commission is a fact-finding administrative body with delegated regulatory authority)
- U.S. Steel Corp. v. N. Ind. Pub. Serv. Co., 951 N.E.2d 542 (Ind. Ct. App. 2011) (appellate review standards for Commission factual findings and mixed questions)
- United States Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790 (Ind. 2000) (agency possesses implicit powers necessary to effectuate statutory scheme)