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COA opts for judicial restraint

October 16, 2008

The Indiana Court of Appeals has opted for judicial restraint in not deciding whether state statutes involving the Commerce Clause and the use of clean coal technology are unconstitutional.

An opinion issued today in Citizens Action Coalition of Indiana, Inc., et al. v. PSI Energy Inc., et al., No. 93-A02-0712-EX-1093, deals with an appeal from the Indiana Utility Regulatory Commission involving a Duke Energy proposal to build the state's first electric power plant of its kind since the 1980s. The proposed integrated gasification combined cycle plant, known as an IGCC, would be built at Duke's existing Edwardsport facility that would quadruple the electricity-generating capacity using a cleaner and more efficient system than conventional coal-fired plants. In seeking approval, Duke went before the utility regulatory body and also sought financial incentives authorized by state law.

Several environmental and citizen groups, including the Sierra Club and Citizens Action Coalition, challenged the commission's November 2007 approval for Duke, as well as a commission decision not to reopen the record a day before its decision.

The appellate panel affirmed the commission's decisions, finding that the body didn't abuse its discretion by denying the request to reopen proceedings and that state statutes allows Duke to recover construction costs.

On a final issue, the court declined to address whether Indiana Code Sections 8-1-8.5, 8-1-8.7, and 8-1-8.8 violate the U.S. Constitution's dormant Commerce Clause by expressing a preference for Indiana coal. The statutes deal with the issuance of certificates to construct utility power plants and clean coal technology, factors the commission must consider, and certain incentives offered for clean coal and energy projects.

Judges relied on General Motors Corp. v. Indianapolis Power & Light Co., 654 N.E.2d 752 (Ind. Ct. App. 1995), where the court had decided that very issue and used a federal decision from then-U.S. District Judge John D. Tinder in Indianapolis as guidance. The court had decided in General Motors that provisions of the coal-related statute were unconstitutional because they were "plainly protectionist" and discriminated against interstate commerce, but that the utility commission could sever the unconstitutional provisions. In this case, the commission had recognized that decision and didn't consider the use of Indiana coal as a factor in granting Duke's petition, the court wrote.

"Even if we concluded that the statutory provisions at issue violated the Commerce Clause and had to be severed, Appellants would be entitled to no relief," the court wrote. "As a result, we conclude that it is unnecessary for us to decide Appellants' constitutional challenge to (the statutes)."

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