IPL Industrial Group v. Indianapolis Power and Light Company ( 2020 )

FILED
Nov 04 2020, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Citizens Action Coalition of Indiana, Inc. Indiana Utility Regulatory
Commission
Jennifer A. Washburn
Indianapolis, Indiana Aaron T. Craft
City of Indianapolis Jeremy R. Comeau
Steven L. Davies
Anne E. Becker Beth E. Heline
Bette Jean Dodd Indianapolis, Indiana
Indianapolis, Indiana
Indianapolis Power and Light
Indiana Office of Utility Consumer Company
Counselor
Peter J. Rusthoven
Abby R. Gray Teresa E. Morton
William I. Fine Jeffrey M. Peabody
Randall C. Helmen Indianapolis, Indiana
Jeffrey M. Reed
Indianapolis, Indiana
IPL Industrial Group
Todd A. Richardson
Joseph P. Rompala
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 20A-EX-800 | November 4, 2020 Page 1 of 22
IPL Industrial Group, Citizens November 4, 2020
Action Coalition of Indiana, Court of Appeals Case No.
Inc., City of Indianapolis, and 20A-EX-800
Indiana Office of Utility Appeal from the Indiana Utility
Consumer Counselor, Regulatory Commission
Appellants-Intervenors, The Honorable Jennifer L.
Schuster, Administrative Law
v. Judge
The Honorable James F. Huston,
Indianapolis Power and Light Chairman
Company and Indiana Utility IURC Cause No. 45264
Regulatory Commission,
Appellees-Petitioners.
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellants-Intervenors and Statutory Party, IPL Industrial Group, Indiana
Office of Utility Consumer Counselor, City of Indianapolis, and Citizens
Action Coalition of Indiana, Inc. (Collectively, Consumer Parties), appeal the
Indiana Utility Regulatory Commission’s (Commission) Order approving
Appellee-Petitioner’s, Indianapolis Power & Light Company (IPL), Proposed
Plan involving $1.2 billion in system investments over a seven-year period.
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[2] We affirm.
ISSUES
[3] The Consumer Parties raise three issues on appeal, which we restate as follows:
1. Whether the Commission’s decision to admit into evidence IPL’s
workpapers was an abuse of discretion, when the admission occurred at
the end of the evidentiary hearing and without a sponsoring witness or
foundation;
2. Whether the Commission erroneously interpreted the statutory
requirement that the incremental benefits yielded by the Proposed Plan
must justify its estimated costs when IPL’s evidence established that its
Proposed Plan was geared towards risk reduction of an already highly
reliable system; and
3. Whether the Commission failed to make specific findings on material
issues and only formulated a conclusory finding in summary fashion on
the statutory cost-justification requirement and the disputed
monetization analysis offered by IPL.
FACTS AND PROCEDURAL HISTORY
[4] The case before us arises under the Transmission, Distribution, and Storage
System Improvement Charge (TDSIC) statute, as enacted in Indiana Code Ch.
8-1-39. Unlike a traditional rate case which involves a comprehensive review of
a utility’s operations and financial status, the TDSIC mechanism allows utilities
to request increases in their rates—outside of a rate case—to fund certain
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upgrades and improvements to an energy utility’s transmission, distribution, or
storage system in Indiana. The TDSIC statute institutes two distinct types of
proceedings. First, pursuant to Section 10, the utility must secure the
Commission’s preapproval of a plan to complete identified improvement
projects at a defined budget over a specified time period. See I.C. § 8-1-39-10.
To gain approval, the plan must satisfy certain enumerated statutory criteria,
including the best estimate of costs, a finding of public convenience and
necessity, a showing of reasonableness, and a determination that “the estimated
costs of the eligible improvements included in the plan are justified by
incremental benefits attributable to the plan.” See I.C. § 8-1-39-10(b). Once a
plan is approved, the utility may then, pursuant to Section 9, seek periodic rate
increases at six-month intervals to recover 80% of the approved costs as the
planned work is completed. See I.C. § 8-1-39-9(a). Up to these authorized
expenditures, rate recovery is automatic. The remaining 20% of the costs is
accumulated in a deferred account for recovery, with carrying charges, in the
utility’s next rate case. See I.C. § 8-1-39-9(c).
[5] On July 24, 2019, IPL filed its petition with the Commission under Section 10
of the TDSIC statute, seeking approval of proposed expenditures of $1.2 billion
over a seven-year period to replace, rebuild, upgrade, redesign, and modernize a
wide range of IPL’s transmission- and distribution-system assets (Proposed
Plan). The Proposed Plan was intended to address grid resiliency, so that the
system could be restored more easily when outages occur. The investments
under the Proposed Plan were prioritized through a Risk Model, which
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identified assets based on the amount of risk—in terms of likelihood of failure
and consequence of failure—and the cost to buy down risk in order to achieve
the highest risk reduction per dollar invested. IPL projected that the planned
projects would result in a system risk reduction of about 36.6% over the seven-
year period. To justify the enormous cost of the Proposed Plan, IPL relied on a
monetization analysis. Using a Department of Energy calculation tool, IPL
monetized the impact of projected outages over a twenty-year period, which
IPL asserted could be avoided through the planned projects enumerated in the
Proposed Plan. According to IPL, the monetization analysis reflects a net
benefit of $939 million to IPL customers by the end of the twenty-year period.
[6] At the same time IPL filed its petition, it also prefiled, pursuant to Commission
procedure, its case-in-chief evidence consisting of the written testimony and
related exhibits of six witnesses. IPL also submitted voluminous workpapers
consisting of underlying supporting material associated with the witnesses’
testimony.
[7] By statute, the ratepaying public is represented in all utility proceedings by the
Office of Utility Consumer Counselor (OUCC), an independent state agency.
In addition, three other Consumer Parties intervened in this proceeding. The
IPL Industrial Group (Industrial Group) is an ad hoc group comprised of
several large volume consumers served by IPL; the City of Indianapolis
intervened in its capacity as an IPL ratepayer with an interest in the impact of
IPL rates on the local economy and its citizenry; and Citizens Action Coalition
and Environmental Law & Policy Center are advocacy organizations for
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consumer and environmental interests that were jointly represented below. All
of the Consumer Parties opposed IPL’s petition for approval of the Proposed
Plan and prefiled their written testimony and exhibits in response. On October
23, 2019, IPL filed its rebuttal evidence but did not file any additional
workpapers in connection with the rebuttal evidence.
[8] Over the course of three days—November 14, 21, and 22, 2019—the
Commission conducted a publicly noticed evidentiary hearing. On the third
and final day of the proceeding, after the penultimate IPL witness had testified
and both cross-examination and redirect were completed, IPL’s counsel orally
moved the Commission to take administrative notice of the voluminous
workpapers that had been submitted by IPL at the outset of the proceeding.
The workpapers had not been offered as exhibits in connection with the
testimony of any IPL witness at the hearing. The witness who testified
subsequently addressed accounting issues that were unrelated to nearly all of
the mass of workpapers, and the witness did not identify, authenticate, or
reference the workpapers during his testimony. The Consumer Parties objected
to IPL’s request for administrative notice of the workpapers as being untimely
and not sponsored by any witness. They also asserted that IPL should have
included the workpapers in its prefiled evidence if it wanted them to be part of
the evidentiary record. The Commission took the issue under advisement.
[9] On March 4, 2020, The Commission issued its Order, in which it addressed the
statutory criteria under Section 10 of the TDSIC Statute, determining that the
estimated costs of the projects in IPL’s Proposed Plan were justified by their
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incremental benefits, and approved the Plan as proposed by IPL in its entirety.
As part of the Order, the Commission granted IPL’s request for administrative
notice of its workpapers.
[10] The Consumer Parties appealed. Additional facts will be provided if necessary.
DECISION AND DISCUSSION
I. Standard of Review
[11] The General Assembly created the Commission primarily as a fact-finding body
with the technical expertise to administer the regulatory scheme devised by the
legislature. Northern Ind. Publ. Service Co. v. United States Steel Co., 907 N.E.2d
1012, 1015 (Ind. 2009). The Commission’s assignment is to ensure that public
utilities provide constant, reliable, and efficient service to the citizens of
Indiana. Ind. Bell Tel. Co. v. Ind. Util. Regulatory Comm’n, 715 N.E.2d 351, 354
n.3 (Ind. 1999). The Commission can only exercise power conferred upon it by
statute. Northern Ind. Publ. Service Co., 907 N.E.2d at 1015. An appeal of the
Commission’s decision amounts to a two-tiered review by the appellate court.
On the first level, it requires a review of whether there is substantial evidence in
light of the whole record to support the Commission’s findings of basic fact.
Citizens Action Coalition of Ind., Inc. v. N. Ind. Pub. Serv. Co., 485 N.E.2d 610, 612
(Ind. 1985). Such determinations of basic fact are reviewed under a substantial
evidence standard, meaning the order will stand unless no substantial evidence
supports it. McClain v. Review Bd. of Ind. Dept. of Workforce Dev., 693 N.E.2d
1314, 1317-18 (Ind. 1998).
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[12] During its substantial evidence review, “the appellate court neither reweighs the
evidence nor assesses the credibility of witnesses and considers only the
evidence most favorable to the [Commission’s] findings.” Id. The
Commission’s order is conclusive and binding unless (1) the evidence on which
the Commission based its findings was devoid of probative value; (2) the
quantum of legitimate evidence was so proportionately meager as to lead to the
conviction that the finding does not rest upon a rational basis; (3) the result of
the hearing before the Commission was substantially influenced by improper
considerations; (4) there was no substantial evidence supporting the findings of
the Commission; (5) the order of the Commission is fraudulent, unreasonable,
or arbitrary. Id. at 1317 n.2. This list of exceptions is not exclusive. Id. At the
second level, the order must contain specific findings on all the factual
determinations material to its ultimate conclusions. Citizens Action Coalition,
485 N.E.2d at 612. We review the Commission’s conclusions of ultimate facts
for reasonableness, the deference of which is based on the amount of expertise
exercised by the agency. McClain, 693 N.E.2d at 1317-18.
[13] Insofar as the order involves a subject within the Commission’s special
competence, the courts should give greater deference. Id. at 1318. Conversely,
if the subject is outside the Commission’s expertise, the courts should give less
deference. Id. In either case, courts may examine the logic of inferences drawn
and any rule of law that may drive the result. Id. Additionally, an agency
action is always subject to review as contrary to law, but this constitutionally
preserved review is limited to whether the Commission stayed within its
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jurisdiction and conformed to the statutory standards and legal principles
involved in producing its decision, ruling, or order. Citizens Action Coalition, 485
N.E.2d at 612-13.
[14] “Ratemaking is a legislative, not a judicial function[.]” Pub. Serv. Comm’n v.
City of Indianapolis, 131 N.E.2d 308, 312 (Ind, 1956). Agencies are executive
branch institutions which the General Assembly has empowered with delegated
duties. Northern Ind. Publ. Service Co., 907 N.E.2d at 1018. As such, “basic facts
are reviewed for substantial evidence, legal propositions are reviewed for their
correctness.” McClain, 693 N.E. 2d at 1318. Ultimate facts or “mixed
questions” are evaluated for reasonableness, with the amount of deference
depending on whether the issue falls within the Commission’s expertise. See id.
II. Admission of Workpapers
[15] The Consumer Parties contend that the admission of nearly 20,000 pages of
workpapers was highly prejudicial and unfair because the documents related to
key elements on which IPL bore the burden of proof and IPL did not introduce
them into evidence until after the Consumer Parties had rested their case.
Although the Commission admitted the workpapers by administrative notice,
the Consumer Parties maintain that administrative notice was improper
because no foundation was laid, there was no sponsoring witness, and the
documents were not verified or self-authenticating.
[16] Formal Commission proceedings are conducted through an adversarial process,
in which “the Commission may be guided generally by relevant provisions of
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the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence to the
extent they are consistent with this rule,” while some features of the process
utilize agency specific rules and practices. See 170 Admin. Code § 1-1.1-26(a).
When IPL filed its petition with the Commission, it also prefiled its case-in-
chief evidence consisting of the written testimony and exhibits of six witnesses.
Pursuant to the Commission’s prehearing conference order, IPL filed “copies of
the workpapers used to produce that evidence within two business days after
the prefiling of the technical evidence,” with service on the Consumer Parties.
(Appellant’s App. Vol. II, p. 111). As such, the workpapers represent “support
for the technical evidence and calculations included in a party’s case-in-chief.”
(Appellant’s App. Vol. II, p. 35). They provide detailed computational and
comparable backup for the technical evidence in a proceeding and allow the
Commission’s expert staff to review in detail the analyses that further support
IPL’s evidence.
[17] On the third and final day of the proceeding, after the penultimate IPL witness
testified and both cross-examination and redirect were completed, IPL’s
counsel orally moved the Commission to take administrative notice of the
workpapers that had been submitted by IPL at the outset of the proceeding.
The Consumer Parties contend that this request was untimely and made in
violation of Indiana’s Administrative rule, which states that, “[a] request by a
party for administrative notice of a factual matter that should be included in a
party’s prefiled testimony shall be made at the same time the related evidence is
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prefiled.” 170 I.A.C. 1-1.1-21(j). 1 However, as workpapers merely provide
further underlying support for the calculations and details of the factual matters
addressed by a witness’ prefiled testimony, they do not constitute facts that are
required to be in testimony. 2
[18] Rather, IPL’s administrative notice request was made pursuant to 170 I.A.C. 1-
1.1-21(h), which provides that the “Commission may take administrative
notice, on its own motion or upon a party’s motion, of relevant administrative
rules, commission orders, or other documents previously filed with the
Commission.” As IPL submitted the workpapers on July 24, 2019 to the
Commission, and served them on the Consumer Parties at the same time, they
amount to “other documents previously filed,” of which the Commission may
properly take administrative notice.
[19] We disagree with the Consumer Parties that the workpapers are inadmissible as
they were admitted without a proper foundation or a sponsoring witness, in
violation of Indiana’s rules of evidence. While we agree that Indiana’s rules of
evidence are applicable to the Commission’s proceedings, their application is
limited “to the extent they are consistent with” the rules promulgated in the
Administrative Code. See 170 I.A.C. § 1-1.1-26(a). As specific rules governing
1
The Commission’s procedural rules were amended and became effective June 10, 2020. Here, the
Commission applied the rules in effect at the time of the proceeding, prior to the new rules taking effect.
2
Even if we find, which we do not, that the workpapers fall within the premise of 170 I.A.C. 1-1.1-21(j) and
comport a factual matter that should be included in a party’s prefiled testimony, we conclude that IPL’s
untimely request for administrative notice merely amounted to harmless error as the Consumer Parties had
received notice and a copy of the workpapers three months before the hearing.
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administrative notice before the Commission were promulgated, the
administrative rules trump the evidentiary trial rules. Accordingly, the
Commission appropriately took administrative notice of IPL’s workpapers
III. Incremental Benefits
[20] In Indiana, utility rates are traditionally adjusted through general ratemaking
cases, which encompass a “comprehensive” process, requiring the Commission
to “examine every aspect of the utility’s operations and the economic
environment in which the utility functions to ensure that the data [the
Commission] has received is representative of operating conditions that will, or
should, prevail in future years.” United States Gypsum, Inc. v. Ind. Gas Co., 735
N.E.2d 790, 798 (Ind. 2000). However, over the years the legislature has
supplemented traditional ratemaking with various ‘tracker” procedures that
allow utilities to ask the Commission to adjust their rates to reflect various costs
without having to undergo a full ratemaking case. NIPSCO Indus. Grp. v. N. Ind.
Publ. Serv. Co., 100 N.E.3d 234, 238 (Ind. 2018). The TDSIC statute is one such
procedure; it encourages energy utilities to replace their aging infrastructure by
modernizing electric or gas transmission, distribution, and storage projects. Id.This TDSIC procedure is a process for utilities to assess a distinct charge—a
Transmission, Distribution, and Storage System Improvement Charge—for
completed projects deemed eligible for improvements under the Statute. Id. In
contrast to traditional ratemaking, the TDSIC procedure permits a utility to
seek preapproval of designated capital improvements to the utility’s
infrastructure and then to recover the costs of those improvements every few
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months as they are completed. Id. at 238-39. Eligible improvements are certain
new or replacement utility projects that: “(1) a public utility undertakes for
purposes of safety, reliability, system modernization, or economic development
. . .; (2) were not included in the public utility’s rate base in its most recent
general rate case; and (3) [were] designated in the public utility’s seven year
plan and approved by the Commission under section 10 of this chapter as
eligible for TDSIC treatment.” I.C. § 8-1-39-2.
[21] The TDSIC statute contemplates two distinct types of proceedings, only one of
which is at the center of this dispute. Specifically, under Section 10, the utility
may seek regulatory approval of a seven-year plan for designated improvements
to transmission, distribution, and storage systems. See I.C. § 8-1-39-10. The
Commission shall then approve the plan and designate the planned
improvements as eligible for TDSIC treatment if it finds the plan is reasonable.
I.C. § 8-1-39-10(b). When determining that a plan is reasonable, the
Commission’s order must include (1) “[a] finding if the best estimate of the cost
of the eligible improvements,” (2) “[a] determination whether public
convenience and necessity require or will require the eligible improvements,”
and (3) “[a] determination whether the estimated costs of the eligible
improvements . . . are justified by the incremental benefits attributable to the
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plan.” I.C. § 8-1-39-10(b). 3 It is this third determination that takes center stage
in the Consumer Parties’ pivotal argument.
[22] Focusing on the incremental benefits language in the determination of the
reasonableness of the Proposed Plan, the Consumer Parties contend that IPL
did not identify any cost-justified incremental benefits of the suggested
improvements, but instead relied on “a risk reduction rationale, premised on
the theory that a percentage reduction in risk, no matter how small that risk
may be, is sufficient justification for the enormous $1.2 billion investment
proposed.” (Appellants’ Br. p. 25). They argue that IPL’s theory significantly
altered the analysis as the record reflects a highly reliable utility system with a
consistent history of strong performance and a recent approval of its rate
funding plan to target the leading cause of outages. Because IPL has
consistently achieved a high level of reliability as compared to investor-owned
utilities nationwide, the Consumer Parties maintain that a shift from assessing
incremental benefits as required by statute to considering only reductions to an
already low level of risk, does not satisfy the cost-justification of the excessive
costs to achieve a negligible change in system performance.
3
The second type of proceeding—which is not disputed—is comprised in Section 9 and states that once the
Commission has approved a seven-year plan, the utility may petition every few months for periodic rate
adjustments to recover “eight percent (80%) of approved capital expenditures and TDSIC costs” for the
system improvements designated as eligible and actually completed. I.C. §§ 8-1-39—9(a), (c), (e). The
remaining twenty percent can be recovered only “as part of the next general rate case that the public utility
files with the Commission.” I.C. § 8-1-39-9(b).
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[23] In essence, the Consumer Parties’ argument rests on the premise that an
incremental benefit may only be measured by an overall increase in the current
reliability of IPL’s system. Put differently, the Consumer Parties posit that if a
utility’s system is 99% reliable, a TDSIC plan will satisfy the statutory
incremental benefits requirement only if it will further elevate the overall
system’s reliability. Under their reading, the fact a TDSIC plan will preserve
system reliability going forward, when it would otherwise degrade, is
immaterial. Nothing in the TDSIC statute supports the Consumer Parties’
narrow reading of incremental benefits.
[24] The TDSIC statute “encourages energy utilities to replace their aging
infrastructure by modernizing electric or gas transmissions, distributions, and
storage systems.” NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 125 N.E.3d 617,
624 (Ind. 2019). At its core, the TDSIC statute approves designated capital
improvements to the utility’s infrastructure to replace its aging infrastructure
and modernize its system. A proposed upgrade to the system is thus reasonable
when “the estimated costs of the eligible improvements . . . are justified by the
incremental benefits attributable to the plan.” I.C. § 8-1-39-10(b). Once the
Commission identifies the incremental benefits, it must then exercise its quasi-
legislative function and determine whether these benefits justify the estimated
costs.
[25] Neither ‘benefit’ nor ‘incremental’ is defined by the TDSIC statute. “When
interpreting a statute, we presume the legislature uses undefined terms in their
common and ordinary meaning.” NIPSCO Indus. Grp., 100 N.E.3d at 242. “If
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the legislature has not defined a word, we give the word its plain, ordinary, and
usual meaning, consulting English language dictionaries when helpful in
determining that meaning.” Moriarty v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614,
621 (Ind. 2019). As such, a “benefit” is defined as “something that guards,
aids, or promotes well-being;” while “incremental” means “something that is
gained or added.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY 204, 1146
(3rd ed. 1993).
[26] The evidence reflects that the Proposed Plan identified seven categories of
benefits: (1) customer experience; (2) reliability and resiliency; (3) safety; (4)
operational efficiency; (5) risk reduction; (6) power quality; and (7)
modernization. Some of these benefits are reduced to a quantifiable monetary
value or monetization and each of the projects in the Proposed Plan are
correlated with several types of associated benefits. Among others, the
Proposed Plan indicates that the rebuilding of circuits, the largest category of
projects in terms of estimated costs, would involve rebuilding more than 400
miles of overhead power lines. It is uncontested that an upgrade to those lines
would make IPL’s system safer to the public and more reliable, while also
improving the ability to restore power promptly in the event of an outage. The
Plan reflects that the circuit rebuilds will lead to a larger capacity for bi-
directional flow, which will allow for more customer-owned generation solar
panels and other alternative energy sources. Based on all these benefits—which
is not solely risk-reduction—the Commission found the record showed a
“sound basis” for the proposed projects and associated costs such that the
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project cost was “justified by the incremental benefits.” (Appellants’ App. Vol.
II, pp. 29-30). The monetization analysis reflects total benefits over a twenty-
year period of over $2 billion, compared to the total estimated cost of the
Proposed Plan of $1.2 billion. Also monetized in the analysis is the ability of
the new modernized grid to self-heal, without the need for human interaction,
which accounted for a benefit of $429 million,
[27] While the evidence indicates that “IPL’s assets are currently functioning well
but operating at various levels of risk (with an ever increasing number of assets
migrating into the high risk zone),” the Proposed Plan intends to “counter the
continuing trend of more assets moving into the high risk region, which will
lead to more frequent equipment failures, thus affecting large numbers of
customers.” (Exh. Vol. II, p. 140).
[28] In its Order, the Commission found that the Proposed Plan would “reduce risk
of asset failure and maintain service reliability,” thus “provid[ing] incremental
benefits compared to how the future would otherwise unfold.” (Appellant’s
App. Vol. II, p. 30). The Commission specifically pointed to IPL’s
supplemental analysis of the Proposed Plan’s benefits, which “monetized, from
the customer experience perspective, the value of avoiding service outages
associated with asset failure.” (Appellants’ App. Vol. II, p. 30). Based on that
analysis, the Commission determined that the Proposed Plan “will provide a
net benefit that exceeds the cost of the eligible improvements.” (Appellants’
App. Vol. II, p. 30). The Commission concluded that the estimated cost of the
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Proposed Plan rested on a sound factual and analytical foundation and was
determined to be reasonable.
[29] Accordingly, as the Proposed Plan’s overall goal was “to replace the aging
infrastructure by modernizing its transmission and distribution system,” IPL
identified, besides risk reduction, several other benefits which added to the
system’s well-being. Based on the monetization of these numerous incremental
benefits, IPL supported its burden that “the estimated costs of the eligible
improvements . . . are justified by the incremental benefits” gained by the
customers. See I.C. § 8-1-39-10(b). As we find that the Commission’s
interpretation of its statute is reasonable, we affirm the Order.
IV. Specific Findings
[30] Lastly, the Consumer Parties contend that the Commission’s Order lacks
specific findings on all material issues raised by the parties. They maintain that
the Order misconstrued the cost-justification requirement by adopting IPL’s
position and addressing the “material deficiencies in IPL’s monetization
analysis” without critical scrutiny, despite the Consumer Parties’ arguments
indicating that the analysis greatly overstated the benefits while understating the
costs. (Appellants’ Br. p. 51).
[31] “[A]n Order must contain specific findings on all the factual determinations
material to its ultimate conclusions.” N. Ind. Pub. Serv. Co, 907 N.E.2d at 1016.
Specific findings are not required on particular arguments by the parties.
Citizens Action Coalition of Ind., Inc. v. Indianapolis Power & Light Co., 74 N.E.3d
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554, 564-65 (Ind. Ct. App. 2017) (specific findings not required on claims that
“one component” of rate order had “deleterious effect on energy conservation
and energy efficiency,” or that “structure disproportionally harms” some
consumers). Findings “need to be only specific enough to permit us to
intelligently review the [agency] decision.” J.M. v. Review Bd. of Ind. Dep’t of
Workforce Dev., 975 N.E.2d 1283, 1287 (Ind. 2012). “Agency findings are
specific enough when they are given with sufficient particularity and specificity
such that the reviewing court can adequately and competently review the
agency’s decision.” Id. “An appeal based on an alleged lack of specific findings
presents a mixed question of law and fact.” NIPSCO Indus. Grp., 125 N.E.3d at
627. “In these situations, we review the Commission’s conclusions for
reasonableness, deferring to the Commission based on the amount of expertise
exercised by [it].” Id.
[32] While the TDSIC statute specifies three material determinations the
Commission must make on a proposed plan, the Consumer Parties only
disputed the third requirement, in which the “estimated costs of the eligible
improvements . . . are justified by [the Proposed Plan’s] incremental benefits.”
I.C. § 8-1-39-10(b). In reviewing the Order, the Commission’s detailed findings
and scrutiny span three pages. “Based on the evidence presented,” the
Commission found that “the record demonstrates that the estimated cost of
IPL’s TDSIC Plan . . . rests on a sound factual and analytical foundation and is
reasonable,” and that IPL’s estimate was “the best estimate of the cost of the
[Plan’s] eligible improvements.” (Appellants’ App. Vol. II, p. 29). The
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Commission’s findings on the incremental benefits are equally clear and
evidence based: “[a]s shown in Table 3.3 of the [Proposed Plan], IPL
monetized” the customer value “of avoiding service outages associated with
asset failure.” (Appellants’ App. Vol. II, p, 30). IPL’s analysis—which “did
not attempt to quantify all project benefits,” but “focused on projects that lend
themselves to monetization”—showed the projects “provide a net benefit that
exceeds the cost of the eligible improvements.” (Appellants’ App. Vol. II, p.
30). The Order found that “record evidence demonstrates” that the Proposed
Plan seeks “to reduce risk of asset failure and maintain service reliability;” that
it “provides incremental benefits compared to how the future would otherwise
unfold;” and that IPL has “optimized the incremental benefits” and shown “a
sound basis for the proposed projects and associated costs.” (Appellants’ App.
Vol. II, p. 30). Thus, the Order “determin[ed] that the estimated costs of the
[Proposed Plan] improvements are justified by incremental benefits attributable
to the [Proposed Plan].” (Appellants’ App. Vol. II, p. 30).
[33] All these specific findings are prefaced by the Order’s detailed summary of
evidence on this topic in IPL’s case-in-chief, in the Consumer Parties’
opposition case, and in IPL’s rebuttal. See NIPSCO Indus. Grp., 125 N.E.3d at
625 (“Despite the Industrial Group’s arguments to the contrary, the
Commission supported its conclusion to approve the TDSIC-2 petition with
specific findings,” prefaced “by summarizing the conflicting testimony
presented to it [] by NIPSCO and the Industrial Group”). Accordingly, the
Commission’s specific findings are sufficiently particular that we can
Court of Appeals of Indiana | Opinion 20A-EX-800 | November 4, 2020 Page 20 of 22
“adequately and competently review” the Commission’s decision. J.M., 975
N.E.2d at 1287.
[34] We disagree with the Consumer Parties that the Commission should have
specifically addressed each one of its concerns posed by IPL’s monetization
analysis and risk-reduction model. The Commission’s findings credited and
gave weight to IPL’s monetization analysis and risk-reduction model. It
accepted IPL’s methodology of calculation of benefits and estimated costs.
While both the Consumer Parties’ and IPL’s methodology were evidenced in
the record with expert witnesses on both sides, the Commission rejected the
Consumer Parties’ proposed evaluation and gave no weight to its witnesses
Although “reasonable people may disagree” with the Commission’s findings,
“that is immaterial to our review of the [Commission’s] decision, which
contains sufficient findings and is supported by substantial evidence.” Citizens
Action Coalition of Ind., Inc. v. N. Ind. Publ. Serv. Co, 76 N.E. 3d 144, 155 (Ind.
2017).
[35] As we noted before, specific findings are not required on particular arguments
by parties. See Citizens Action Coalition of Ind., Inc., 74 N.E.3d at 564-65. Here,
the Commission’s Order contained specific findings on all the factual
determinations material to its ultimate conclusions and was prefaced by an
extensive review of the evidence presented by the parties. Although the
Commission did not explicitly refute each and every argument made by the
Consumer Parties, its findings are sufficiently detailed to allow us an intelligent
and adequate review of the Order.
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CONCLUSION
[36] Based on the foregoing, we hold that the Commission properly admitted IPL’s
workpapers by administrative notice; the Commission properly determined that
the costs of the eligible improvements included in the Proposed Plan are
justified by their incremental benefits; and the Commission’s findings are
sufficiently specific to enable appellate review of its decision.
[37] Affirmed.
[38] May, J. and Altice, J. concur
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