Jennifer Nelson for www.theindianalawyer.com
Even though a utility company completed many of the projects it received approval for regarding modifications of coal-powered generating stations, that does not render an appeal by various environmental groups moot, the Indiana Court of Appeals held Thursday.
Vectren Energy Delivery of Indiana filed a petition with the Indiana Utility Regulatory Commission for approval of projects to modify four coal-powered generating stations to meet new EPA standards. It sought modifications instead of construction of new natural-gas powered generators. The petition also asked for financial incentives and reimbursement from ratepayers for costs associated with the projects.
Citizens Action Coalition of Indiana Inc., Sierra Club Inc. and Valley Watch Inc. intervened and opposed the action, claiming replacing the current coal-powered generators with new natural gas-powered ones was a more cost-effective plan than the one Vectren proposed.
The commission found the proposal reasonable and necessary, approved it, and granted the company’s request for reimbursement and project costs. The environmental groups appealed, but Vectren argued the appeal is moot because the projects have been completed and in use since the beginning of this year and the appellants should have sought a stay preventing Vectren’s use of its new environmental controls.
The Court of Appeals rejected Vectren’s argument, finding it began work on the projects while the appeal was pending at its own risk. It cannot “singlehandedly prevent Appellants’ ability to pursue an appeal by building the environmental controls at issue while the appeal is pending and then claim that the appeal is moot because they have already built those controls,†Judge Cale Bradford wrote.
The judges found that the commission erred in failing to make findings on the nine factors listed in I.C. 8-1-8.7-3 in granting Vectren’s request, such as project costs and reduction of pollutants that can be achieved, and remanded for the commission to do so.
“Here … the Commission did not mention Chapter 8.7 in its order and maintains on appeal that Chapter 8.7 does not apply and that it ‘did not make any Chapter 8.7 findings.’ As we have already found, Chapter 8.7 does apply to certain projects within Vectren’s proposal. Accordingly, it was not harmless error for the Commission to ignore the statutory factors outlined in Section 8-1-8.7-3(b),†Bradford wrote.
The case is 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, 93A02-1502-EX-110.
