Indiana Supreme Court justices on Thursday sketched out a “middle ground” in a power plant dispute that could upend legal precedent allowing groups to sue on behalf of their members.
Attorneys for Duke Energy Indiana, ratepayer watchdog Citizens Action Coalition and others met for oral arguments in a case that has united dozens of disparate groups for coal, clean energy, gun rights, retirees, rural education and beyond in favor of the concept of associational standing.
Indiana’s high court accepted jurisdiction on an emergency basis, despite concerns.
“Looking at this case, I mean, for some reason, we think this is an emergency,” said Justice Christopher Goff, who voted against the emergency transfer. “This has been a legal proposition that’s been accepted, at least, by the lower courts — and, certainly, prior iterations of this court — for some time.”
“That’s the concern that I have, is that this has been rushed through by people who have really powerful interests … at a time when people who have to organize — it’s really important for them to have a voice, for the long-term legitimacy of the process,” Goff said. “We took this on an emergency. It does have constitutional implications, and I’m concerned … when we decide something of such high importance in that way.”
Peter Rusthoven, a Barnes & Thornburg attorney representing Duke Energy Indiana, assured Goff that not only was the case “fully briefed,” but that it would have reached the court regardless.
“This issue is going to come up to this Supreme Court if you put it through the Court of Appeals first,” Rusthoven said. “… I don’t think it’s being rushed in terms of this argument. It’s an important issue.”
Case’s origin
The legal battle began as a case before the Indiana Utility Regulatory Commission.
Duke sought permission to build two natural gas-fired units at the existing Cayuga Generating Station in western Indiana’s Vermillion County. The utility maintains that a pay-as-you-build approach for the $3.3 billion project will save customers nearly $560 million in additional financing costs, according to the IURC’s 2025 approval.
The Citizens Action Coalition and another organization, Vote Solar, opposed Duke’s use of the construction-work-in-progress financing mechanism, arguing it would force customers to pay higher prices before the natural gas units go online and produce any electricity.
When the two groups appealed the IURC’s decision to the Indiana Court of Appeals, Duke asked the high court to take over the case. The utility challenged their standing to sue.
A split Indiana Supreme Court in April granted the emergency petition to transfer. Goff was joined by Chief Justice Loretta Rush in voting to deny, with the rest of the five-person panel voting in favor.
Arguments made
Duke maintains that Citizens Action Coalition doesn’t have standing — enough of a connection to sue — because the organization itself isn’t a Duke customer and no customers are individually listed as plaintiffs in the lawsuit.
“Unless we have an actual injured party before us, we cannot proceed,” Rusthoven told the court.
“These associations aren’t injured in any of those ways. But you do have people who can claim to be: in this case, Duke ratepayers who don’t want this (construction-work-in-progress), they’re free to sue,” he said later. “They’re free to come in, and this association and others can throw all their power behind them.”
Rusthoven argued that associations could also participate in lawsuits through other means, like by writing friend-of-the-court briefs, and take part in regulatory and legislative proceedings.
A coalition of more than a dozen states has aligned with Duke, pointing out downsides to explicitly recognizing associational standing in Indiana.
The organizations fighting Duke, however, argued that it’s a key way for regular people to access courts.
Earthjustice attorney Kirti Datla, representing Citizens Action Coalition and Vote Solar, said the dozens of friend-of-the-court briefs filed by other associations “justify why people would come together in a group for the protection that groups offer, (so) you aren’t standing out in the crowd in your own name.”
A brief filed by a coalition of nonprofits — led by the American Civil Liberties Union of Indiana and prominent conservative lawyer Jim Bopp — argued associational standing allows legal violations to be fixed even when would-be plaintiffs can’t sue themselves. The document offers reasons like privacy, fear of retaliation, disability, immigration status, cost and more.
Another coalition of builders, real estate agents, restaurants and others wrote that associational standing litigation benefits large groups of stakeholders and that explicitly allowing it wouldn’t open the floodgates to interest-group litigation.
“Requiring a member to sue as a plaintiff on behalf of all other members of the association would not make their dispute any more concrete,” Datla said.
Datla and Rusthoven disagreed on whether Indiana’s Office of Utility Consumer Counselor, which represents ratepayers in IURC cases, would still be able to sue without associational standing.
Goff and others separately asked both sides about a possible middle route: having an association list an affected individual as a “nominal” plaintiff while maintaining control of the lawsuit itself.
Datla said that would probably work like a class-action lawsuit.
“If the individual is going to control all this, and the association can support it, why does there have to be something called associational standing?” Rusthoven said.
If associational standing were kept in some form, he said the court should require proof that an association is actually working with affected members on the lawsuit, and limit what disputes are relevant to a group’s purpose.
“If I declare my interest as good governance, well, then, my association has associational standing to challenge everything that we disagree with, because we are in favor of good governance,” Rusthoven said.
Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.
