Citizens Action Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc.

44 N.E.3d 98, 2015 Ind. App. LEXIS 646, 2015 WL 5579976
CourtIndiana Court of Appeals
DecidedSeptember 23, 2015
DocketNo. 93A02-1503-EX-184
StatusPublished
Cited by2 cases

This text of 44 N.E.3d 98 (Citizens Action Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Action Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc., 44 N.E.3d 98, 2015 Ind. App. LEXIS 646, 2015 WL 5579976 (Ind. Ct. App. 2015).

Opinion

BARTEAU, Senior Judge.

Statement of the Case

[1] In Citizens Action Coalition of Indiana, Inc. v. Duke Energy Indiana, Inc., 16 N.E.3d 449 (Ind.Ct.App.2014) (Citizens Action I), the Court remanded the case to the Indiana Utility Regulatory Commission (the Commission) for findings on two issues related to Duke Energy Indiana, Inc.’s petition to " recover costs incurred while building its new power plant in Edwardsport, Indiana. On remand, the Commission issued an order with additional findings. Citizen’s Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, the Intervenors), appeal the Commission’s order. We affirm in part, reverse in part, and remand.

Issués

[2] The Intervenors raise two issues, which we restate as:

I. Whether the Commission’s findings on remand are sufficient and' supported by the evidence.'
II. Whether the Commission erred in issuing an order oh remand without reopening the record for the presentation of additional evidence.1

[100]*100Facts and Procedural History

[3] The- facts, as presented in Citizens Action I, are as follows:

In 2006, Duke operated a coal and oil-fired generating station at its Ed-wardsport facility in Knox County, Indiana. The facility, which had a capacity of 160 megawatts, had been placed ‘in-service’ between 1944 and 1951, and was nearing the end of its useful economic life. On September 7, 2006, Duke and Southern Indiana Gas and Electric Company, d/b/a Vectren Energy Delivery of Indianá, Inc., filed a Verified Petition with the Commission, pursuant to Indiana Code chapters 8-1-8.5, 8—1—8.7, .and 8-1-8.8, requesting .the issuance of applicable certificates of public convenience and necessity (‘CPCN’) and applicable certificates of clean coal technology for the construction of a 630-megawatt capacity, integrated gasification combined cycle (‘IGCC’) power plant at the Ed-wardsport location. An IGCC generating facility converts coal into synthesis gas, which is used to fuel highly efficient combustion turbines.
In the Verified Petition, Duke requested: approval of the estimated costs and construction schedule of the IGCC Project (‘the Project); authority pursuant to Indiana Code section 8-1-8.8-12 to recover construction - and operating costs associated with the Project on a timely basis via applicable rate adjustment mechanisms; authority to use accelerated depreciation for the. Project; approval of certain additional financial incentives associated with the Project; authority to defer its prQperty tax expense, post-in-service carrying costs, depreciation costs, and operation and maintenance costs associated with the Project on an interim basis until the applicable costs are reflected in Duke’s retail electric rates; and authority to recover other related costs associated with the Project. In re Duke Energy Ind., Inc., 43114, 2007 WL 4150583 (Nov. 20, 2007). Duke also asked the Commission to conduct an ongoing review'of the construction of the Project. Id.
Pursuant to Indiana Code section 8-1-1.1-5.1, the Indiana Office of the Utility Consumer Counselor (‘OUCC’) participated in the proceedings before the Commission on behalf of consumers and ratepayers. Intervenors, Duke Energy Indiana Industrial' Group (‘Industrial Group’), and Nucor Steel, a Division of Nucor Corporation (‘Nucor’), among others, were additional parties to this proceeding.
On November 20, 2007, the Commission issued its final order in consolidated Cause Numbers 43114 and' 43114-SI and made several determinations, including: (1) approval of CPCNs for the Project under [Indiana'Code chapters] 8-1-8.5 and 8-1-8.7; (2) approval of Duke’s estimated costs of $1.985 billion as reasonable to complete the Project; ' and (3) ágreement that ongoing review of the construction of'and cost recovery for the Project would be conducted in semiannual proceedings. Id. The semiannual proceedings included a rate adjustment mechanism, the IGCC Rider. In each IGCC Rider, the Commission would review the progress of the Project’s construction and consider Duke’s request to immediately recover construction costs, financing costs, and other operating costs that Duke had incurred during the previous six-month period. Once approved, these costs were immediatély added to customers’ rates. Each 'six-month period was numbered, with the first being IGCC-1, the second TGCC-2, and so forth- In the instant action, Intervenors appeal from [101]*101the Commission’s order (‘Order’) in the ninth,semi-annual review, IGCC-9.
In May 2008, Duke filed its petition in IGCC-rl, which included a request by Duke to revise the projected cost estimate of the Project from $1[.]985 billion to $2.35 billion and a request for approval to undertake studies related to. carbon capture at the Project and for cost recovery for such studies. On January 7, 2009, the Commission issued its order in IGCC-1 approving: (1) Duke’s increase in cost estimate to $2.35 billion and its ongoing review progress report; (2) timely recovery from ratepayers of construction and operating costs, including financing, through the IGCC Rider for the six months under review; and (3) studies related to carbon capture at the Project and cost recovery for such studies. In re Duke Energy Ind., Inc., 431114 IGCC-1, 2009 WL 214580 (Jan. 7, 2009). In the subsequent two. reviews, the Commission also approved Duke’s cost recovery requests in IGCC-2 and IGCC-3.
On November 24, 2009, in connection with IGCC-4,. Duke requested approval from the Commission to recover from ratepayers the costs it had incurred during the six-month period ending September 30, 2009. Duke also requested a subdocket, referred to as IGCC-4S1, asking the Commission to approve an increase to the cost estimate for the entire project. In re Duke Energy Ind., Inc., 2012 WL 6759528 (Ind. U.R.C., Dec. 27, 2012). Under IGCC-4S1, Duke initially .requested ah increase in the Project’s cost from $2.35 billion to $2.88 billion including allowance for funds used during construction (‘AFUDC’). Id. Subsequently, Duke proposed to voluntarily cap the costs that it would seek from customers and sought approval of a Project cost estimate of $2,72 billion in direct construction costs, plus all associated AFUDC costs on the $2.72 billion for a total of approximately $3 billion. Id.
On July 28, 2010, the Commission issued its .interim order in IGCC-4, approving Duke’s six-month costs and the IGCC Rider on an interim basis, pending the outcome of IGCC-4S1. On September 17, 2010, Duke, Industrial Group, and the OUCC submitted a settlement agreement to the Commission ⅛ IGCC-4S1,"'which set a hard cap cost of $2[.]975 billion on the construction costs of the Project. Subsequently, amidst an ethics . scandal involving Duke and the Commission, the settlement agreement was withdrawn.
About two years later, on April 30, 2012, Duke filed a modified settlement agreement in IGCC-4S1 (“Agreement”) to which Duke, Industrial Group, OUCC, and Nucor were all parties. Appellants’ App. at 321-32.

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44 N.E.3d 98, 2015 Ind. App. LEXIS 646, 2015 WL 5579976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-action-coalition-of-indiana-inc-v-duke-energy-indiana-inc-indctapp-2015.