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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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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