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I in the INDIANA COURT of APPEALS CAUSE NO. 93A02-1301

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I in the INDIANA COURT of APPEALS CAUSE NO. 93A02-1301 IN THE INDIANA COURT OF APPEALS CAUSE NO. 93A02-1301-EX-76 CITIZENS ACTION COALITION OF ) Appeal from the Indiana Utility Regulatory INDIANA, INC., et al. ) Commission ) Appellants, ) CAUSE NOS. 43114 IGCC-4, ) 43114 IGCC-4S1, 43114 IGCC-5, ) 43114 IGCC-6, 43114-IGCC-7, v. ) and 43114 IGCC-8 ) ) James D. Atterholt, Chairman ) Kari A.E. Bennett, Commissioner DUKE ENERGY INDIANA, INC., et al. ) Larry S. Landis, Commissioner ) Carolene Mays, Commissioner Appellees, ) David E. Ziegner, Commissioner ) David E. Veleta, Administrative Law Judge JOINT APPELLANTS’ BRIEF J. David Agnew, Atty. No. 21531-49 Jennifer A. Washburn, Atty. No. 30462-49 LORCH NAVILLE WARD, LLC CITIZENS ACTION COALITION OF 506 State Street INDIANA, INC. P.O. Box 1343 603 E. Washington Street, Ste. 502 New Albany, IN 47150-1343 Indianapolis, IN 46204 Telephone: (812) 949-1000 Telephone: (317) 735-7764 Michael A. Mullett, Atty. No. 10124-03 Jerome Polk, Atty. No. 23712-49 MULLETT & ASSOCIATES POLK & ASSOCIATES, LLC 723 Lafayette Street 6300 Falconsgate Avenue P.O. Box 2084 Davie, Florida 33331-2928 Columbus, IN 47202 Telephone: (317) 636-5165 Telephone: (812) 376-0734 Attorneys for Appellants Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. i TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................ ii TABLE OF AUTHORITIES .......................................................................................................... v I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................................... 1 A. Due Process Issues ............................................................................................................... 1 B. Issues Relating to Standard of Review ................................................................................ 2 C. Issues Relating to Cost Recovery ........................................................................................ 2 II. STATEMENT OF THE CASES ................................................................................................ 4 A. IURC Cause Nos. 43114-IGCC-4 and 43114-IGCC-4S1 ................................................... 4 B. IURC Cause No. 43114-IGCC-5 and IGCC-6 .................................................................. 12 C. IURC Cause No. 43114-IGCC-7 ....................................................................................... 13 D. IURC Cause No. 43114-IGCC-8 ....................................................................................... 13 III. STATEMENT OF FACTS RELEVANT TO THE ISSUES .................................................. 14 A. Facts Relevant to Issue #1: Commission’s Refusal to Consider Effects of Conflicts of Interest and Improper Ex Parte Communications Violative of Administrative Due Process ... 14 B. Facts Relevant to Issue #2: Commission’s Refusal to Reveal Information Obtained from a Third Party, Black & Veatch, Regarding Duke’s Management of the Edwardsport Project .... 21 C. Facts Relevant to Issue #3: Commission’s Erroneous Conclusion that the Settling Parties Had No Obligation to Present Any Evidence That the Payment of $13.6 Million in Attorneys’ Fees and Costs Under the Settlement Was Reasonable Or In the Public Interest ..................... 31 D. Facts Relevant to Issue #4: Commission’s Failure to Make Findings of Fact, Based on Substantial Evidence, on Specific Allegations of Fraud, Concealment, and Gross Mismanagement ........................................................................................................................ 32 E. Facts Relevant to Issue #5: The Commission’s Failure to Make Any Findings of Fact or Conclusions of Law on the Need for Mitigation of Carbon Dioxide Emissions from the Plant 33 F. Facts Relevant to Issue #6: Commission’s Approval of 100% Duke’s Costs Through September of 2010 While Simultaneously Finding That Duke Failed to Meet Its’ Burden of Proof That These Costs Were “Prudent” ................................................................................... 34 ii G. Facts Relevant to Issue #7: Commission’s Approval of Duke’s Calculation of AFUDC Rate of Return, Despite Duke’s Failure to Account for Capital Contributed by Customers in the Form of Deferred Income Taxes ......................................................................................... 35 H. Facts Relevant to Issue #8: Commission’s Approval of Costs Up To the So-Called "Hard Cost Cap" of $2.595 Billion for No Reason Other Than the Number Fell "Within the Range of the Evidence" Presented by the Parties ..................................................................................... 36 IV. SUMMARY OF THE ARGUMENTS ................................................................................... 37 A. Due Process Issues ............................................................................................................. 37 1. Misconduct in the Regulatory Process and Due Process Violations .............................. 37 2. Commission’s Refusal to Disclose Information Obtained Ex Parte from Third Party (Black & Veatch) ................................................................................................................... 39 B. Issues Relating to Standard of Review .............................................................................. 40 3. Settling Parties’ Failure to Submit Evidence on – and Commission’s Failure to Review Reasonableness of – $12.7 Million in Settlement Attorneys’ Fees and $900,000 in Expenses 40 4. Commission’s Failure to Make Findings of Fact, Based on Substantial Evidence, on Specific Allegations of Fraud, Concealment, and Gross Mismanagement ........................... 41 5. Commission’s Failure to Make Any Findings of Fact or Conclusions of Law, Whatsoever, Regarding Mitigation of Carbon Dioxide Emissions ....................................... 42 C. Issues Relating to Cost Recovery ...................................................................................... 43 6. The Commission Found That Some of Duke’s Costs Incurred Prior to September of 2010 Were Not “Prudent,” Yet Approved Duke’s Recovery of 100% of These Costs ........ 43 7. The Commission Allowed Duke to Earn a Return on Customer-Contributed Capital by Accepting Duke’s Calculation of AFUDC Without Accounting for Deferred Taxes ........... 43 8. Commission Approved Settlement Without Specific Finding that Amount of Cost Recovery Was Proper ........................................................................................................... 44 V. ARGUMENT ........................................................................................................................... 45 A. STATUTORY FRAMEWORK AND STANDARD OF REVIEW .................................. 45 B. DUE PROCESS ISSUES ................................................................................................... 46 1. Misconduct in the Regulatory Process and Due Process Violations .............................. 47 iii 2. Commission’s Refusal to Disclose Information Obtained Ex Parte from Third Party (Black & Veatch) ................................................................................................................... 63 B. ISSUES RELATING TO STANDARD OF REVIEW ..................................................... 70 3. Settling Parties’ Failure to Submit Evidence on – and Commission’s Failure to Review Reasonableness of – $12.7 Million in Settlement Attorneys’ Fees ....................................... 70 4. Commission’s Failure to Make Findings of Fact, Based on Substantial Evidence, on Specific Allegations of Fraud, Concealment, and Gross Mismanagement ........................... 78 5. Commission’s Failure to Make Any Findings of Fact or Conclusions of Law, Whatsoever, Regarding Mitigation of Carbon Dioxide Emissions ....................................... 80 C. ISSUES RELATING TO COST RECOVERY ................................................................. 83 6. The Commission Found That Some of Duke’s Costs Incurred Prior to September of 2010 Were Not “Prudent,” Yet Approved Duke’s Recovery of 100% of These Costs ........ 83 7. The Commission Allowed Duke to Earn a Return on Customer-Contributed Capital by Accepting Duke’s Calculation of AFUDC Without Accounting for Deferred Taxes ........... 85 8. Commission Approved Settlement Without Specific Finding that Amount of Cost Recovery Was Proper ........................................................................................................... 87 VI. CONCLUSION....................................................................................................................... 91 iv TABLE OF AUTHORITIES Cases Berry v. School Dist. (1998, WD Mich) 184 FRD 93................................................................... 73 Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 289 (U.S. 1974) .. 40, 66 Carey v. Piphus, 435 U.S. 247, 266 (1978) .................................................................................. 60 Citizens Action Coalition v. PSI Energy, 664 N.E.2d 401, 406 (Ind. Ct. App. 1996) 41, 71, 72, 77 Citizens Action Coalition, Inc. v. Public Service Co., 582 N.E.2d 330, 333 (Ind. 1991) ....... 46, 47 City of Evansville v. Southern Indiana Gas and Electric Co., 339 N.E.2d 562, 584 (Ind. Ct. App. 1975) ..................................................................................................................................
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