October 29, 2015 – by the Indiana Law Blog. Editor’s note: We would almost certainly expect that Vectren will appeal this decision for either a rehearing before the same Court of Appeals or seek review by the Indiana Supreme Court.
In Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. v. Southern Indiana Gas and Electric Co. d/b/a Vectren Energy Delivery of Indiana, Inc., Ind. Utility Regulatory , a 34-page opinion, Judge Bradford writes:
On January 17, 2014, Appellee-Petitioner Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana (“Vectren”), a public utility company which provides electricity to southern Indiana residents, filed a petition with Appellee the Indiana Utility Regulatory Commission (“the Commission” or “IURC”) for approval of projects to modify their current coal-powered generating stations so as to meet new EPA standards. The petition also requested financial incentives and reimbursement from ratepayers for costs associated with the projects. Appellants-Intervenors Citizens Action Coalition of Indiana, Inc., (“CAC”) Sierra Club, Inc., and Valley Watch, Inc. (collectively “Appellants”) intervened in the action and, in addition to the Indiana Office of Utility Consumer Counselor1 (“OUCC”), opposed Vectren’s petition. Appellants argued that retiring some or all of Vectren’s current coal-powered generators and replacing them with new natural gas-powered generators was a more cost-effective plan than Vectren’s proposal to install emission controls on its current generators. Ultimately, the OUCC ceased its opposition to Vectren’s proposal prior to the Commission’s decision.The Commission found that Vectren’s proposal was reasonable and necessary, approved the proposal, and granted Vectren’s request for reimbursement of project costs. On appeal, Appellants argue that the Commission failed to make necessary findings on (1) facts material to its determination of the issues and (2) statutory factors required to be addressed prior to authorizing the use of clean coal technology. In response, Vectren claims that Appellants’ appeal is moot and that the Commission made all necessary findings. We find that the Commission erred in failing to make findings on the factors listed in Indiana Code section 8-1-8.7-3 and, accordingly, we remand with instructions. * * *
We find that (1) the Appellants’ claims are not moot, (2) the Commission did not err in failing to consider the necessity of Culley unit 2 or the reasonableness of Vectren’s delay in filing its petition, and (3) regarding the soda ash and hydrated lime injection systems, the Commission erred by failing to make findings on the statutory factors listed in Indiana Code section 8-1-8.7-3 and by failing to grant or deny Vectren’s request for a CPCN thereunder. Accordingly, we remand the case to the Commission with instructions that the Commission make the required findings under Chapter 8.7.