Justices dismiss appeal challenging IURC decision, disagree on standing analysis

A solar-power advocacy organization did not have standing to seek judicial review of a decision by the Indiana Utility Regulatory Commission, the Indiana Supreme Court has ruled, dismissing the appeal outright. But while all justices agreed with the outcome, one argued the court’s standing analysis should be more robust.

At issue in the case of Solarize Indiana, Inc. v. Southern Indiana Gas and Electric Co., d/b/a Vectren Energy Delivery of Indiana, Inc., et al., 21S-EX-236, was the question of statutory standing under Indiana Code § 8-1-3-1. While common-law standing derived from the Indiana Constitution generally applies, the high court wrote that this case presented an example of the Legislature establishing standing requirements — here, standing to seek judicial review of an IURC decision.

Specifically, Solarize Indiana Inc. sought judicial review of the IURC’s decision to allow Vectren Energy Delivery of Indiana Inc. to submit two filings under the “Thirty-Day Rule,” which allows the IURC to expedite requests from utilities to change rates, charges, rules or regulations. However, the rule only applies to “noncontroversial filings” to which “no person or entity has filed an objection.”

In early 2020, Vectren submitted the two Thirty-Day Rule filings concerning service arrangements for “qualifying facilities,” or nonutility producers of energy that have their own energy-generation equipment. The first filing proposed a rate revision for Vectren’s purchase of electricity from qualified facilities based on energy production costs not incurred by Vectren, while the second proposed a new contract defining the terms of such an arrangement. The high court noted the only facility that qualified and sold power to Vectren at the time of the filings was the Evansville Regional Airport.

Solarize argued the filings were not in compliance with federal law, but the IURC’s general counsel determined Solarize’s objections were “not compliant” with the Thirty-Day Rule’s procedural requirements. The IURC then approved Vectren’s filings.

After the Court of Appeals of Indiana affirmed and the Indiana Supreme Court granted transfer and heard oral arguments, the high court subsequently invited supplemental briefing on an issue raised for the first time during the arguments: whether Solarize had standing to seek judicial review.

Solarize argued the standing issue was waived because the IURC did not raise it until arguments, but citing Moryl v. Ransone, 4 N.E.3d 1133, 1136-37 (Ind. 2014), the court determined the parties were given notice and opportunity to present arguments via the supplemental briefing.

“So, while it is concerning that it took until oral argument for the question of Solarize’s standing to be explicitly raised, the issue is not waived,” Chief Justice Loretta Rush wrote for the court Tuesday in the opinion dismissing the appeal. “We have a sufficient record on which to decide whether Solarize has standing, and we conclude it does not.”

Turning to I.C. 8-1-3-1, Rush said Solarize failed to meet the statutory requirements for establishing standing by failing to show it was “adversely affected” by the IURC’s order approving Vectren’s Thirty-Day Rule filings.

There are three requirements necessary to prove a party was “adversely affected” by an IURC decision under the statute, Rush wrote: The party must have a personal interest in the outcome, must have suffered or be in immediate danger of suffering an injury, and the injury must be a direct result of the final decision, ruling or order.

Addressing the first requirement, the court determined Solarize did not show a personal stake in the filings because they applied only to “qualifying facilities who can enter into a contract with [Vectren] to provide firm capacity for [the] specified term.” Solarize does not meet that definition, Rush wrote.

Additionally, Solarize did not identify any projects that have been, or likely would be, impacted by Vectren’s filings, thus defeating the second requirement.

“Solarize also adds that Vectren, like other utilities, has a ‘financial incentive to discourage [rooftop solar] installations through deficient prices and other terms for power purchases from customer-generators,’” Rush wrote. “While this may be true, Solarize has not presented any specific allegations of how the two filings here either discouraged installations or in any way impaired Solarize’s ability to perform its functions.”

Finally, Solarize did not establish that any injury or potential injury was the direct result of the IURC’s decision, the court concluded, noting “an effect on the market impacted by these Vectren filings is not a direct injury for standing purposes.”

“In sum, Solarize has not demonstrated it was ‘adversely affected’ by the IURC’s order approving Vectren’s filings and is therefore not a proper party to obtain judicial review,” Rush concluded. “This is not to say Solarize will never have standing to seek judicial review of an IURC order approving a Thirty-Day Rule filing.

“However, the filings here are narrow and applied only to ‘qualifying facilities’ — only the Evansville Regional Airport. Thus, any potential harm to Solarize is simply too remote and speculative to find it has standing to obtain judicial review.”

Justice Geoffrey Slaughter concurred in part, agreeing in a separate opinion that Solarize lacked standing because it was not adversely affected. But he also wrote that “because statutory standing is dispositive here, the rest of the Court’s opinion is unnecessary to its judgment and thus dictum. It is also wrong, in my view, in two key respects.”

The first, Slaughter wrote, was the court’s one-step inquiry into standing that asked whether the party seeking judicial redress had statutory or common-law standing.

“Under this view, if a claimant satisfies statutory standing, a court can adjudicate its claim. And if it does not, a court cannot,” he wrote. “Yet merely because the legislature has set requirements for bringing (or seeking review of) a claim does not mean these requirements are constitutionally sound.

“… I would make explicit that the other step in the standing inquiry asks whether the claimant has constitutional (or common-law) standing,” he continued.

Second, Slaughter said he would add “redressability” to the standing criteria, alongside a personal stake in the litigation and injury resulting from complained-of conduct.

“We should insist that a party seeking to invoke the judicial power stands to benefit from a favorable judgment,” he wrote. “Otherwise, the court is just whistling in the wind, issuing decrees to no effect.”

Clarifying that he was not seeking to import federal standing requirements into Indiana law “for their own sake,” Slaughter concluded by saying he was seeking “state standing requirements consistent with the structural limits Indiana’s constitution imposes on the exercise of judicial power.”

“In my view, the modest requirement that a judicial decree must ‘redress’ a claimant’s injury is essential to keeping courts within their rightful place under our tripartite constitutional scheme,” he concluded.

But addressing Slaughter’s concurrence in a footnote, Rush wrote that “‘redressability’ arises from the U.S. Constitution’s Article III ‘case or controversy’ requirement … a restraint we’ve long recognized ‘the Indiana Constitution does not contain.’

“… At bottom,” the footnote says, “the U.S. Constitution expressly limits federal jurisdiction, while Indiana broadly promises that ‘[a]ll courts shall be open’ at the state level. … That does not mean that standing in Indiana courts is boundless.

“… But just as judges ought not decide the limits of our own authority notwithstanding constitutional restrictions, neither should we narrow courthouse doorways without constitutional authority — for instance, by imposing federal standing limitations in Indiana courts absent a basis in Indiana’s constitution.”