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COA opts for judicial restraint

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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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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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