Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Co.

555 N.E.2d 162, 1990 Ind. App. LEXIS 636, 1990 WL 77127
CourtIndiana Court of Appeals
DecidedJune 4, 1990
Docket93A02-8906-EX-298
StatusPublished
Cited by12 cases

This text of 555 N.E.2d 162 (Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Co.) 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. Northern Indiana Public Service Co., 555 N.E.2d 162, 1990 Ind. App. LEXIS 636, 1990 WL 77127 (Ind. Ct. App. 1990).

Opinion

BAKER, Judge.

In this appeal from an order of the Indiana Utility Regulatory Commission (the Commission), - Intervenor-appellants Citi zens Action Coalition of Indiana and the Office of Utility Consumer Counselor (hereinafter collectively referred to as CAC) appeal the propriety of the Commission's procedures in granting a rate increase to Petitioner-appellee Northern Indiana Public Service Company (NIPSCO). We affirm.

NIPSCO is a public utility engaged in the supply of natural gas to customers throughout northern Indiana. On September 15, 1987, it filed a petition with the Commission to increase its base gas rates for retail services by 11.16%. The Commission granted permission to CAC, the Indus *163 trial Intervenors Group, and several other parties to intervene. 1

NIPSCO serves several classes of customers, ranging from residential to industrial. It serves these customers in two different ways. Sales customers purchase gas for their own use from NIPSCO. Transportation customers purchase their gas from other suppliers, and transport it to their location using NIPSCO's lines. NIPSCO has a history of subsidizing some classes of customers, particularly its residential customers, at the expense of others, particularly its industrial transportation customers. These latter customers have, in recent years, threatened to stop using NIPSCO's services because of the subsidization costs they are forced to pay. Accordingly, both in this order and in a previous one, the Commission has directed NIP-SCO to gradually reduce its inter-class subsidies. The Commission emphasized the idea of gradualism to avoid rate shock to residential customers, who would see their monthly bills increase drastically if the subsidies were eliminated immediately.

NIPSCO, some of the intervenors, and the Commission engineering staff presented the Commission with cost of service studies which illustrated possible rate increases and their effect on the subsidies. After hearing and reviewing extensive testimony regarding these studies, the Commission adopted the study developed by its engineering staff. The Commission determined the staff study lacked any bias in favor of any customer class, and was therefore preferable to any of the other studies. This study was not an exact blueprint, however, but rather a set of parameters within which NIPSCO had to develop proposed rate schedules which accommodated the competing goals of gradualism and subsidy reduction.

In its final order of October 26, 1988, the Commission granted NIPSCO a rate increase of approximately 10.32%. The Commission further ordered NIPSCO to redesign its rate structure to reduce the inter-class subsidies in accordance with the cost of service study adopted by the Commission. In making its order, the Commission required NIPSCO to attempt two different methodologies, each of which reflected the Commission's goals of gradualism and subsidy reduction. NIPSCO's attempts were subject to approval by the Commission's engineering staff, The Commission also required adjustment of NIPSCO's transportation customers' rates at the end of two years to further the goal of subsidy reduction.

In its June 9, 1989 order on petition for reconsideration and rehearing, the Commission rejected all of the issues raised by CAC, two of which CAC now presents for our review. First, whether the Commission unlawfully delegated its authority to determine and fix utility rates under IND. CODE 8-1-2-68 to its engineering staff and to NIPSCO. Second, whether the Commission's ultimate conclusions were supported by sufficient basic findings.

When reviewing a challenge to the Commission's grant of a rate increase, we are mindful that complicated questions of rate-making methodology are particularly within the seope of the Commission's skills, resources, and expert judgment. L.S. Ayres & Co. v. Indianapolis Power & Light Co. (1976), 169 Ind.App. 652, 351 N.E.2d 814; City of Evansville v. Southern Indiana Gas & Electric Co. (1975), 167 Ind.App. 472, 339 N.E.2d 562. Moreover, the Commission has broad discretion necessary to perform its rate making task, and the procedures it employs are not amenable to "precise mathematical quantification." Office of Utility Consumer Counselor v. Public Service Co. of Indiana (1984), Ind. App., 463 N.E.2d 499, 503.

I

DELEGATION OF AUTHORITY

Turning to the first issue for review, CAC specifically contends that the dual methodology approach to rate scheduling taken by the Commission was an abdication of its authority. We disagree.

*164 It is common practice for utilities to file proposed rate schedules for Commission approval. See, e.g., Bethlehem Steel Corp. v. NIPSCO (1979), Ind.App., 397 N.E.2d 623. It is also statutorily authorized by IND.CODE 8-1-2-42(a), which provides in pertinent part that "[njlo change shall be made in any schedule ... except upon thir ty (80) days' notice to the commission, and approval by the commission." Here, NIP-SCO was ordered to develop its rate schedule in accordance with the methodology adopted by the Commission, and it was not allowed either to change a subsidized customer class into a subsidizing class or to do the converse. Moreover, the filed rate schedules had to be approved by the Commission's engineering staff before they could become effective. There was no unlawful delegation.

We are not persuaded by CAC's reliance on New York Central Rail Co. v. Public Serv. Comm. (1922), 191 Ind. 627, 134 N.E. 282 in support of its argument here. In that case, the Commission was statutorily charged with determining the place and manner of railroad interchanges and switches. The Commission unlawfully allowed two railroad companies to make such a determination. Moreover, to create the desired interchange, the two railroad companies would have obstructed the tracks of a third railroad. While the statute provided for such a situation, it also required the Commission to determine the amount of damages which the affected railroad was entitled to. The Commission did not even attempt to determine the third railroad's damages. Our supreme court held the Commission's actions were an unlawful delegation of authority to the railroads. As we have already stated, there was no delegation of authority here. Rather, as the Commission noted, NIPSCO had "the task of performing mathematical calculations in accordance with determinations made in [our] order." Commission Order of June 9, 1989, Record at 528; 104 P.U.R.4th 340, 343.

CAC also argues here that the Commission unlawfully delegated its authority to its engineering staff. This argument is without merit. IND.CODE 8-1-l-11 allows the Commission to employ a staff "as it may deem necessary." "The law ... does not preclude the practical use of assistants as long as an agency does not abdicate its power and responsibility and preserves for itself the right to make the final decision." Madison Area Educational Special Services v. Indiana Education Emp. Rel.

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Bluebook (online)
555 N.E.2d 162, 1990 Ind. App. LEXIS 636, 1990 WL 77127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-action-coalition-of-indiana-inc-v-northern-indiana-public-indctapp-1990.