On June 28, 2023, the Indiana Supreme Court clarified the meaning of the word “invest” in the context of a contract between a public school corporation and a private company regarding the development and operation of a wind turbine project.  The contract obligated the school to make payments over a 20-year period totaling nearly $1.6 million. In exchange, the school would have access to the project for educational purposes and receive a share of the net operating revenue. The project was completed, but it never realized any such revenue.  The school’s refusal to make any contract pay ..read more

On February 21, 2023, the Indiana Court of Appeals reversed an Indiana Utility Regulatory Commission (“Commission”) order granting Duke Energy Indiana (“Duke”) recovery of costs pursuant to federal Environmental Protection Agency (“EPA”) rules for treating coal ash and remediating ash ponds because the Commission had not yet approved the project, which constituted impermissible retroactive ratemaking. The central issue before the court was whether the Commission’s order allowing Duke to recover costs incurred “before or during the pendency of the proceeding, [and] prior to the issuance of the ..read more

On February 14, 2023, the U.S. Court of Appeals for the District of Columbia Circuit upheld an order from the Federal Energy Regulatory Commission (“Commission”) granting Broadview Solar, LLC’s (“Broadview”) application for its Montana facility to be a qualifying facility under the Public Utility Regulatory Policies Act of 1978 (“PURPA”), holding that FERC’s interpretation of 16 U.S.C. § 796(17)(A) was reasonable and well-supported, and its decision to classify Broadview as a qualifying facility was not arbitrary or capricious. Solar Energy Industries Association v. FERC, No. 21-1126 at 3 (D.C ..read more

Recently, the Indiana Court of Appeals decided whether a couple was truly aggrieved, which is a required condition to petition for judicial review of a zoning decision, when they lost their view of Lake Michigan. The Shinalls own a hilltop property with a view of Lake Michigan visible over the roof of the Tarpos’ current home. The Odgen Dunes Zoning Code allows residential buildings to be a maximum height of thirty feet, but the Tarpos wanted a variance allowing their new house to be thirty-nine feet tall, which would obstruct the view the Shinalls have enjoyed for nearly twenty years. Despite ..read more

On March 24, 2023, the 5th Circuit Court of Appeals held that § 254 of the Telecommunications Act of 1996 (the “Act”) did not violate the nondelegation doctrine or the private nondelegation doctrine, denying the Petitioners challenge to Congress’s delegation of administering the Universal Service Fund (“USF”) to the Federal Communications Commission (“FCC”) and the FCC’s reliance on a private entity to support its administration of the USF on constitutional grounds. Consumers’ Research v. Federal Communications Commission, No. 22-60008 at 2 (5th Cir. 2023). The Act established the USF and task ..read more

On February 1, 2023, the Indiana Court of Appeals affirmed the grant of summary judgment for Community Hospital of Anderson and Madison County (the “Hospital”), holding that Rubendall’s claims for negligence and invasion of privacy based on public disclosure of private facts failed as a matter of law pursuant to the Indiana Supreme Court’s decision in Community Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2023). Rubendall, on behalf of herself and similarly situated individuals, alleged that the Hospital’s use of an email-to-paper messaging system that transmitted protected health informat ..read more

On October 21, 2022, the Indiana Court of Appeals held that objections to condemnation proceedings must state specific facts that support the assertions raised by the objections, noting that the special statutory character of eminent domain proceedings and inaction by the Indiana General Assembly necessitate greater factual specificity than what is required of pleadings under Indiana Trial Rule 8. The case involved a condemnation action brought by Duke Energy, LLC (“Duke”) in which it sought to take a perpetual and non-exclusive easement running across certain real estate owned by Bender Enter ..read more

On January 4, 2023, the Indiana Supreme Court affirmed the Indiana Utility Regulatory Commission’s (“IURC”) approval of Southern Indiana Gas & Electric Company’s (“Vectren”) new instantaneous netting method (“Rider EDG”) of determining the amount of credit Vectren customers receive for their excess distributed generation of electricity, overruling the Indiana Court of Appeals. The central issue before the Court was whether the IURC’s approval of Vectren’s Rider EDG satisfied the requirements of I.C. 8-1-40-5, which defines excess distributed generation as “the difference between: (1) the e ..read more

On October 28, 2022, the Indiana Court of Appeals reversed an order from the Indiana Utility Regulatory Commission (“IURC”) order in its entirety, holding that the IURC erred in concluding that two of the City of Carmel’s (“Carmel”) Ordinances were unreasonable and void because they conflicted with INDOT regulations, contained vague terms, and because they allegedly shifted relocation costs to Duke Energy’s statewide customers. The City of Carmel v. Duke Energy, LLC and Indiana Office of Utility Consumer Counselor, 22A-EX-88 at 24 (Ind. Ct. App. 2022). The case involved two Carmel ordinances ..read more

On March 10, 2022, the Indiana Supreme Court concluded that a utility cannot be reimbursed for a deferred asset, even if it is properly accounted for, without violating Ind. Code § 8-1-2-68 bar against retroactive ratemaking. The case involved the utility regulation commission’s approval of Duke Energy Indiana’s (“Duke”) 2019 request to increase its rates for retail consumers in order to recover about $212 million for coal-ash site closures, coal-ash site remediation, and other financing costs associated with the 2015 Environmental Protection Agency’s new rules for treating coal ash and remedi ..read more