Duke Energy customers might not have to pay $300 million for the utility’s coal ash cleanup after all. The Indiana Court of Appeals ruled Tuesday that the Indiana Utility Regulatory Commission shouldn’t have approved Duke’s plans to raise rates.
Coal ash is the waste leftover from burning coal — which can contain toxic heavy metals like mercury, cadmium and arsenic.
In 2015, the Obama administration made new requirements for disposing of coal ash. Among other things, utilities had to remove coal ash from unlined, uncapped ponds where the ash is more likely to contaminate the groundwater.
Duke Energy's attempts to charge customers for its coal ash cleanups has been the subject of a long legal battle — including a case that went before the Indiana Supreme Court in 2022.
A year after Duke and the IURC lost the Supreme Court case, the Indiana legislature passed a law to allow electric utilities to charge their customers for the costs to comply with federal mandates — like coal ash cleanup — without needing prior approval first.
READ MORE: Indiana’s coal ash ponds are safe from April’s floods, but still pose a risk
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One day after the law was signed by Gov. Eric Holcomb, Duke Energy tried to apply it to costs the utility incurred before the law took effect. The appellate court said the Indiana Utility Regulatory Commission illegally approved Duke's rate increase.
Earthjustice Attorney Thom Cmar represented the consumer and environmental advocacy group Citizens Action Coalition (CAC) in the case.
“As it’s become clear that these unsafe sites are contaminating groundwater, they’re a risk to health and safety for people who live near them — utilities are, of course, looking for ways to not have to bear those costs themselves,” he said.
Though the case is primarily over the cost of coal ash cleanup, Cmar said the court's ruling on CAC's standing has larger implications.
Duke Energy tried to say CAC didn’t have standing to bring cases on behalf of Duke’s customers — but the court didn’t agree.
“If it had been accepted by courts, would potentially apply to a lot of nonprofit organizations in other types of cases — environmental cases, potentially labor cases or civil rights cases," Cmar said.
He said recently electric utilities have made it harder for their customers to play watchdog roles — which makes advocacy and nonprofits group's ability to do so that much more important.
The court said the IURC has to reconsider Duke Energy’s request in a way that aligns with its order — or dismiss it all together. The utility declined comment, saying it was still reviewing the court’s decision.
According to an analysis by CAC, the average resident with Duke Energy has the second highest electric bills in the state.
Rebecca is our energy and environment reporter. Contact her at rthiele@iu.edu or on Signal at IPBenvironment.01. Follow her on Twitter at @beckythiele.