Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co.

• Decision Date: 08 March 2022
• Docket Number: Supreme Court Case No. 21S-EX-236
• Citation: 182 N.E.3d 212
• Parties: SOLARIZE INDIANA, INC., Appellant v. SOUTHERN INDIANA GAS AND ELECTRIC CO., d/b/a Vectren Energy Delivery of Indiana, Inc., et al., Appellees
• Court: Indiana Supreme Court

182 N.E.3d 212

SOLARIZE INDIANA, INC., Appellant

v.SOUTHERN INDIANA GAS AND ELECTRIC CO., d/b/a Vectren Energy Delivery of Indiana, Inc., et al., Appellees

Supreme Court Case No. 21S-EX-236

Supreme Court of Indiana.

Argued: June 24, 2021

Filed March 8, 2022

ATTORNEYS FOR APPELLANT: Todd A. Richardson, Joseph P. Rompala, Lewis & Kappes, P.C., Indianapolis, Indiana

ATTORNEYS FOR APPELLEE SOUTHERN INDIANA GAS AND ELECTRIC COMPANY D/B/A VECTREN ENERGY DELIVERY OF INDIANA: Jenny R. Buchheit, Steven W. Krohne, Ice Miller LLP, Indianapolis, Indiana, P. Jason Stephenson, Heather A. Watts, Southern Indiana Gas and Electric Company, Evansville, Indiana

ATTORNEYS FOR APPELLEE INDIANA UTILITY REGULATORY COMMISSION: Aaron T. Craft, Section Chief, Civil Appeals, Office of the Attorney General, Indianapolis, Indiana, Beth E. Heline, General Counsel, Jeremy R. Comeau, Steven L. Davies, Assistant General Counsel, Indiana Utility Regulatory Commission, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE INDIANA OFFICE OF UTILITY CONSUMER COUNSELOR: Thomas J. Hass, William I. Fine, Indiana Office of Utility Consumer Counselor, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, 20A-EX-1384

Rush, Chief Justice.

To seek judicial review of a dispute, a litigant must have standing—that is, it must be a proper party to invoke the court's authority. Standing is a threshold issue: if it is lacking, the court cannot consider the merits of the claim. To seek review of certain administrative decisions, such as those from the Indiana Utility Regulatory Commission, a party must satisfy the statutorily prescribed standing requirements set by our legislature. Specifically, the relevant statute requires the party bringing the appeal to have been "adversely affected" by the Commission decision.

Here, Vectren submitted two filings to the IURC under an expedited process known as the "Thirty-Day Rule." Solarize objected to the filings, asserting they violated federal law. The IURC found the objections did not comply with the Thirty-Day Rule's procedural requirements and issued an order approving both filings. In this appeal, Solarize seeks judicial review of that decision. But because we find Solarize has not shown it was adversely affected by the IURC order, we hold it lacks standing and therefore dismiss the appeal.

Facts and Procedural History

The Indiana Administrative Code provides a filing procedure that allows the Indiana Utility Regulatory Commission to expedite certain requests by utilities. 170 Ind. Admin. Code 1-6. This expedited process, known as the "Thirty-Day Rule," applies to some requests from a utility to change its rates, charges, rules, or regulations. 170 I.A.C. 1-6-1(a). But, the Thirty-Day Rule applies only to "noncontroversial filings," 170 I.A.C. 1-6-1(b), which are those to "which no person or entity has filed an objection," 170 I.A.C. 1-6-2(10).

Southern Indiana Gas and Electric Company, d/b/a Vectren Energy Delivery of Indiana, Inc. ("Vectren"), a utility company which purchases solar energy from other producers, submitted two Thirty-Day Rule filings in early 2020. Both concerned service arrangements for "qualifying facilities"—nonutility producers of energy, including solar, which have their own energy-generation equipment. The first filing, number 50331, proposed a revision to the rate at which Vectren would purchase electricity from qualified facilities based on the costs Vectren did not incur to produce this energy. The second, number 50332, proposed a new contract defining the terms of this arrangement.

Solarize Indiana, Inc. ("Solarize"), an organization that promotes the use of solar power in Indiana, subsequently filed objections to both filings, alleging they were not compliant with federal law. In response, Vectren asserted, among other things, that Solarize's objections lacked specificity and that neither filing violated any applicable law, order, or rule. Solarize replied, elaborating on its contention that the filings violated federal law. After reviewing the parties’ submissions, the IURC's General Counsel advised the Commission that Solarize's objections were "not compliant" with the Thirty-Day Rule's procedural requirements. The IURC issued an order approving Vectren's filings.

Solarize requested judicial review of the IURC's decision, and the Court of Appeals affirmed. Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co. , 163 N.E.3d 880, 882 (Ind. Ct. App. 2021). Solarize then sought transfer, which we granted, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

During oral argument, the IURC explicitly questioned for the first time whether Solarize had standing to seek judicial review. We subsequently invited the parties to file supplemental briefs on standing-related issues. Solarize argued in part that the issue of standing was waived, asserting it was not raised "either in the Commission proceedings or during the Court of Appeals review." Though it is true that a party generally waives an issue that was not raised below, we may decline to find an issue waived when the parties had unequivocal notice of the issue and an opportunity to present respective arguments. See, e.g. , Moryl v. Ransone , 4 N.E.3d 1133, 1136–37 (Ind. 2014). And here, because we asked for briefing on standing and the parties provided it, each party had notice of the issue and presented arguments. Solarize also submitted a verified declaration from its treasurer and founding member to support its standing arguments.¹ 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. We have a sufficient record on which to decide whether Solarize has standing, and we conclude it does not.

Discussion and Decision

The threshold issue of standing determines whether a litigant is entitled to have a court decide the substantive issues of a dispute. To be entitled to such a decision, a plaintiff must be a "proper person" to invoke the court's authority. Horner v. Curry , 125 N.E.3d 584, 589 (Ind. 2019). A party's standing to invoke this authority can be conferred either through common law or by statute. See Schloss v. City of Indianapolis , 553 N.E.2d 1204, 1206 (Ind. 1990) (common law); In re Guardianship of A.J.A. , 991 N.E.2d 110, 113 (Ind. 2013) (statute).

We generally apply the common-law standing rule, which derives from our state constitution's separation-of-powers clause.² See Pence v. State , 652 N.E.2d 486, 488 (Ind. 1995) (citing Ind. Const. art. III, § 1 ). This rule requires a party to demonstrate "a personal stake in the outcome of the litigation and ... show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct." Bd. of Comm'rs of Union Cnty. v. McGuinness , 80 N.E.3d 164, 168 (Ind. 2017) (quoting State ex rel. Cittadine v. Ind. Dep't of Transp. , 790 N.E.2d 978, 979 (Ind. 2003) ). But in certain circumstances, the legislature has established standing requirements. See, e.g. , Ind. Code § 4-21.5-5-3 (limiting who has "standing to obtain judicial review of an agency action" under the Administrative Orders and Procedures Act); Ind. Code § 13-30-1-1 (explaining who "may bring an action for declaratory and equitable relief in the name of the state of Indiana"); Ind. Code § 36-7-4-1603 (identifying who has "standing to obtain judicial review of a zoning decision"). This case presents one such example.

In Indiana Code section 8-1-3-1, our legislature set out the standing requirements for obtaining judicial review of an IURC decision. One of these requirements is that a party seeking review must have been "adversely affected" by the Commission's "final decision, ruling, or order." Ind. Code § 8-1-3-1. Analyzing that statute, we conclude that Solarize has not shown it was adversely affected by the IURC's order. Accordingly, Solarize is not a proper party to invoke the court's authority and thus lacks standing.

I. Indiana Code section 8-1-3-1 prescribes the requirements for obtaining judicial review of an IURC decision.

The parties agree that Title 8 of the Indiana Code governs judicial review of IURC decisions. See I.C. ch. 8-1-3. But they disagree on which statute, or statutes, within Title 8 confer standing. Vectren and the IURC argue that Indiana Code section 8-1-3-1 alone creates the right to seek judicial review. That section reads:

Any person, firm, association, corporation, limited liability company, city, town, or public utility adversely affected by any final decision, ruling, or order of the commission may, within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to the court of appeals of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions ....

I.C. § 8-1-3-1.

Solarize acknowledges that this statute confers standing, but it asserts that section 8-1-3-3 also creates a right to obtain judicial review. Section 3 states:

Any person[,] firm, association, corporation, limited liability company, city, town or public utility may file with the clerk of the court a verified petition to be made a party appellant or appellee, which petition shall allege facts showing that the petitioner has a substantial interest in the determination of the action, and such petitioner shall be made a party appellant or appellee as its interest appears. Any party applicant, intervenor or protestant in the proceedings had before the commission in the matter from which the appeal is taken shall be and have the rights of a party on appeal, upon the filing of a written appearance therein.

I.C. § 8-1-3-3.

We agree with Vectren and the IURC that section 1 alone prescribes the standing requirements. As we have previously explained, section 1 "establishes that in order to bring an appeal, a party must be adversely affected by a ruling of the Commission." Laborers Loc. Union No. 204 v. Pub. Serv. Co. of Ind....