Office of Utility Consumer Counselor v. Northern Indiana Public Service Co.

ROBERTSON, Judge.

This case concerns Northern Indiana Public Service Company, Inc. (NIPSCO)'s failure to apply to the Indiana Utility Regulatory Commission (Commission) for prior approval of its proposed corporate restructuring. The office of the Utility Consumer Counselor (Consumer Counselor) maintains that Indiana law requires state approval of NIPSCO's formation of a holding company and sought to foree NIPSCO to obtain that approval by moving the Commission to hold an adjudicatory hearing at which the Commission would determine whether the proposed reorganization was in the public interest. The Commission solicited a written list of the Consumer Counselor's concerns, reviewed NIPSCO's responses and then issued an order which is the subject of this appeal. The Commission deferred consideration of the Consumer Counselor's concerns, ordering an investigation of corporate reorganizations generally, in anticipation of rulemaking proceedings. The Commission also dismissed the proceedings initiated by the Consumer Counselor before it, expressly reserving consideration of IND.CODE 8-1-2-83, upon which the Consumer Counselor relied, for another day.

The Consumer Counselor now seeks judicial review of the Commission's order. He argues that I.C. 8-1-2-83 requires the Commission to hold a hearing to approve or disapprove certain types of transactions, including the type of transaction being contemplated by NIPSCO. He complains that by refusing to resolve in this proceeding the question of the Commission's authority over corporate reorganizations like the one being considered by NIPSCO, the Commission has either violated I.C. 8-1-2-83 or failed to fulfill its factfinding obligations in a manner sufficient for appellate review.

NIPSCO contends, however, that the Commission, in the exercise of its discretion, could properly submit the matter to investigation and ultimately proceed by rulemaking rather than adjudication. NIP-SCO also reiterates its earlier arguments that the appeal should be dismissed because the matter is not ripe for judicial review and the Consumer Counselor lacks standing.

Intervenors, American Maize-Products Company, The Dalton Foundries, Inc., Inland Steel Company, LTV Steel Company, Inc., National Steel Corporation, Union Carbide Corporation and USX Corporation have also favored us with a brief. Their position is first, that the Commission has no jurisdiction whatsoever over an exchange of stock by stockholders, when no sale, assignment, transfer, lease or encumbering of a utility's franchise, works or system occurred, and second, even if LC. 8-1-2-88 applies to an exchange of shares as is involved here, the Commission does not have jurisdiction until an applicant seeks approval. Since NIPSCO has not yet sought approval of its reorganization, no matter is before the Commission to be adjudicated and no hearing is yet required. With respect to the Commission's decision to engage in rulemaking at some point in the future, the intervenors argue that the Commission having no jurisdiction over the exchange of shares, could not have abused its discretion by directing the Consumer Counselor to offer its concerns at subsequent rulemaking proceedings.

As we indicated earlier, the Consumer Counselor maintains that the only legal question before the Commission and now before this court is whether the proposed creation of a utility holding company falls within the scope of LC. 8-1-2-838. In essence, the Consumer Counselor seeks a declaration resolving the question whether under the applicable statute, the Commission has subject matter jurisdiction. In the past, we have held that the Public Service Commission, now the Indiana Utility Regulatory Commission, as an administrative agency of the state with limited jurisdiction, does not have the statutory authority to issue declaratory rulings of this type. Kentucky-Indiana Municipal Power Association v. Public Service Co. of Indiana, Inc. (1979), 181 Ind.App. 639, 393 N.E.2d 776. Cf., also, U.S. Steel Corp. v. Northern Indiana Public Service Commission, Ind.App., 482 N.E.2d 501, on rehearing, 486 N.E.2d 1082, 1087 (1985). Since the issue raised by the Consumer Counselor's motion for a hearing involved a determination of the legal status of NIPSCO's proposal before the Commission, a declaratory judgment proceeding before a court would have been the appropriate means of adjudicating the controversy. The Commission, therefore, correctly rejected consideration of the scope of its authority under I.C. 8-1-2-83 when it was confronted with the issue in the Consumer Counselor's motion for hearing.

What remains before us is an appeal from an order of the Commission initiating an investigation into the implications of a corporate reorganization on a public utility. Although the Consumer Counselor argues that the Commission lacks the authority to promulgate rules and regulations governing the creation of holding companies, he does not suggest that the Commission is without authority to inquire into the management of all public utilities or to consider the effects of different corporate structures upon the adequacy of services or reasonableness of rates. See, eg., I.C. 8-1-2-48; I.C. 8-1-2-49; I.C. 8-1-2-58. Cf., also, I.C. 8-1-2-69. Inasmuch as the Commission has done nothing but initiate an investigation, an action which is clearly within its discretion to undertake, there is no justiciable factual or legal controversy before us. The appeal should therefore be dismissed. Indiana & Michigan Electric Co. v. Public Service Commission (1986), Ind.App., 495 N.E.2d 779, trans. denied.

Appeal dismissed.

NEAL, J., concurs. STATON, J., dissents with separate opinion.