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Duke loses appeal of scandal-touched IURC rate case reversal

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The Indiana Utility Regulatory Commission’s reversal and subsequent rejection of deferred accounting of $11.9 million for Duke Energy was affirmed by the Court of Appeals Friday in a case revisited because of an ethics scandal involving state regulators.

Duke appealed an IURC ruling against its request for deferred accounting related to expenses incurred in a 2009 ice storm. The IURC previously had found in Duke’s favor, and the utility sued claiming that the decision against it was arbitrary and capricious.

Even though the IURC provided no reasons for denying Duke’s second request, the COA ruled that it didn’t have to in Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission,  93A02-1111-EX-1042.

“We find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion,” Judge Nancy Vaidik wrote for the court. “We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.”

The IURC’s decision against Duke came after it was discovered that former IURC chairman David Lott Hardy was aware that administrative law judge Scott Storms was talking to the utility about a position at Duke while he was presiding over their cases.

Storms was hired by Duke and subsequently fired, and a state ethics panel fined him $10,000 and forbid him from holding future state employment. Hardy was fired and charged with three Class D felony counts of official misconduct.    
 
“Duke is unable to cite to any authority requiring the IURC to fully explain why it changed its mind following a new hearing on the issues at which updated evidence was presented,” Vaidik wrote, noting that the IURC did make required findings in the second case.

“What happened here is analogous to what sometimes happens in civil cases across this state. That is, it is similar to a trial court denying a party’s summary-judgment motion without explanation early in a case but then granting that very same summary-judgment motion, on the same evidence, one week before trial without explanation. In both instances, the evidence is essentially the same, and the ‘judge’ is not required to give an explanation as to why he changed his mind between one decision and another,” Vaidik wrote.

“Although the better practice would have been for the IURC to clearly articulate why it reached different conclusions, we find that the updated evidence presented at the second hearing justified the IURC’s decision to deny Duke relief in its October 2011 order, and, in any event, the IURC was not required to explain why it reached an opposite conclusion in its October 2011 order.”

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