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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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