Indus. Energy Consumers of Ohio Power Co. v. Pub. Util. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Industrial Energy Consumers of Ohio Power Company et al.,
Appellants, v. Public Utilities Commission of Ohio et al.,
Appellees.
[Cite as Indus. Energy Consumers of Ohio Power Co. v. Pub.
Util. Comm. (1994), Ohio St.3d .]
Public Utilities Commission -- Electric utilities -- Acid
rain control -- Commission's determination approving
an environmental compliance plan affirmed, when.
(No. 93-505 -- Submitted December 14, 1993 -- Decided
March 30, 1994.)
Appeal from the Public Utilities Commission of Ohio,
No. 92-790-EL-ECP.
This case involves an order of the Public Utilities
Commission of Ohio ("commission"), appellee, approving an
environmental compliance plan under R.C. Chapter 4913.
For a complete understanding of the facts giving rise to
this appeal, a brief introduction to the state and federal
laws involved is necessary.
R.C. Chapter 4913 was enacted by the General Assembly
in response to Title IV of the federal Clean Air Act
Amendments of 1990 ("CAAA"), Sections 7651, Title 42,
U.S.Code. The purpose of the CAAA is to reduce the
adverse effects of acid deposition from the atmosphere by
controlling, among other things, emissions of sulfur
dioxide by electric utilities. Section 7651(a) and (b).
Compliance with the CAAA is to occur nationwide in
two phases. In "Phase I," which begins in 1995, certain
identified electric utility generating plants (Phase I
affected units) must reduce annual emissions of sulfur
dioxide to specified levels. Section 7651c. In "Phase
II," which begins in the year 2000, most other electric
utility generating units must achieve reductions in sulfur
dioxide emissions. Section 7651d.
One of the primary components of the CAAA is the
establishment of a system of emission "allowances" to
control the amount of sulfur dioxide emitted from affected

units on an annual basis. See Section 7651b. Each
emission "allowance" is a limited authorization allocated
to an affected unit to emit one ton of sulfur dioxide
during, or after, the calendar year in which the allowance
is issued. Section 7651a(3). Under the CAAA, Phase I
affected units are to be assigned annual allowances equal
to the number of authorized tons of sulfur dioxide
emissions. See, generally, Section 7651b(a)(1).
Beginning in the year 1995, a Phase I affected unit will
be required to have an emission allowance for each ton of
sulfur dioxide emitted from that facility. See Section
7651c. However, the CAAA provides that emission
allowances may be transferred among the designated
representatives of the owners or operators of affected
sources and any other person who holds such allowances.
See Section 7651b(b).
The CAAA does not specify which of a variety of
possible compliance options are to be employed by an
electric utility to achieve Phase I emission reductions.
That matter is apparently left for the utility to decide.
However, in simplest terms, a utility can meet the Phase I
requirements of the CAAA at any given Phase I affected
unit by reducing the amount of sulfur dioxide emitted
(through, for example, a switch to lower-sulfur coal or
natural gas, or by installing flue gas desulfurization
equipment, i.e., "scrubbers"), by acquiring additional
allowances, or by some combination of these compliance
strategies. It is also possible for a utility to
essentially "overcomply" at one or more of its affected
units (by reducing emissions below the level necessary for
compliance) and save or "bank" any unused emission
allowances for use at other Phase I affected units.
R.C. Chapter 4913 permits an electric light company
to seek commission review and approval of an environmental
compliance plan1 developed by the company to meet the
requirements of the CAAA at the company's Phase I affected
units. R.C. 4913.02(A). Pursuant to R.C. 4913.04(A), the
commission is required to approve a plan that is
adequately documented if the commission makes all the
findings listed in R.C. 4913.04(A)(1) through (7),
including the finding set forth in R.C. 4913.04(A)(2) that
the plan constitutes "a reasonable and least-cost strategy
for compliance with the applicable acid rain control
requirements that is consistent with providing reliable,
efficient, and economical electric service."2 If the
commission does not make all the findings listed in R.C.
4913.04(A)(1) through (7), the commission must disapprove
the plan. R.C. 4913.04(B). If the commission approves
the plan of an electric light company that is a public
utility, the company's decision to implement a compliance
measure contained in the approved plan is deemed to
constitute a prudent management decision. See R.C.
4909.157(A).3
On April 29, 1992, Ohio Power Company ("Ohio Power"),
appellee, a subsidiary of American Electric Power Company
("AEP"), submitted an application to the commission under
R.C. 4913.02 seeking review and approval of a least-cost

plan to comply with the Phase I requirements of the CAAA.
Ohio Power's environmental compliance plan was based upon
an AEP system-wide acid rain compliance report.4 In
accordance with that report, Ohio Power's plan called for
installing scrubbers at Gavin Units 1 and 2, switching to
lower-sulfur coal at four other Phase I affected units
(Kammer Units 1-3 and Muskingum Unit 5), and continuing to
burn existing coal supplies at Ohio Power's seven
remaining Phase I affected units (Cardinal Unit 1,
Muskingum Units 1-4, and Mitchell Units 1 and 2). Under
the plan, any compliance action to be taken at Cardinal
Unit 1 and Muskingum Units 1-4 was to be deferred until
Phase II, at which time Cardinal Unit 1 was to be
"fuel-switched" from high-sulfur coal to low-sulfur coal
and Muskingum Units 1-4 were to be fuel-switched from coal
to natural gas.5
Ohio Power's plan was supported by a number of case
studies offered to show that the plan was the least-cost
strategy for Phase I compliance when viewed in the context
of the overall AEP system-wide plan. The studies
evaluated two principal compliance strategies for the
Gavin power plant, with each study assuming a Phase I
fuel-switch at Muskingum Unit 5 and Kammer Units 1-3 as
proposed in Ohio Power's plan. The case studies projected
the effects on AEP's revenue requirements if Gavin was
fuel-switched from high-sulfur to low-sulfur coal (Case 1)
or retrofitted with scrubbers (Case 2); evaluated the
effects of escalating fuel prices on these options (Case
1S and 2S); and examined compliance through the sale of
allowances (Case 3). The studies revealed that, in the
long run, installing scrubbers at Gavin, as opposed to a
Gavin fuel-switch, was the least-cost alternative for
Phase I compliance.
At a hearing conducted on Ohio Power's plan,
appellant Sierra Club offered evidence to show that a
least-cost compliance plan would have included, as an
additional compliance measure, a Phase I fuel-switch at
Cardinal Unit 1. Similarly, the commission's staff
suggested that a fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4 at the beginning of Phase I may
constitute additional cost-effective measures to be
included in Ohio Power's plan. However, commission staff
witness Carl R. Evans concluded that Ohio Power's plan to
install scrubbers at Gavin and to fuel-switch Muskingum
Unit 5 would constitute part of any least-cost compliance
plan.
On rebuttal, Ohio Power offered additional case
studies to address the concerns of the commission's staff
that an accelerated fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4 could result in an even lower-cost
compliance plan. Case 1E identified the effects of these
additional compliance measures on the Gavin fuel-switch
(Case 1) scenario. Case 2E identified the effects of a
Phase I fuel-switch at Cardinal Unit 1 and Muskingum Units
1-4 on the Gavin-scrubber (Case 2) scenario. The studies
revealed that a fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4 at the beginning of Phase I might, in

the long run, moderately reduce AEP revenue requirements
under the Gavin fuel-switch and Gavin-scrubber cases.
However, the studies confirmed that installing scrubbers
at Gavin was the least-cost alternative for Phase I
compliance whether Cardinal Unit 1 and Muskingum Units 1-4
were fuel-switched in Phase I or Phase II.
Ohio Power's witness, Henry W. Fayne, urged that the
company's compliance strategy should not be changed to
include a fuel-switch at Cardinal Unit 1 and Muskingum
Units 1-4 in Phase I. Fayne testified that there were
increased risks and uncertainties associated with an
earlier fuel-switch at these facilities, and that an
earlier fuel-switch would necessitate closure of
company-affiliated mines, resulting in the loss of a
significant number of Ohio jobs. Moreover, Fayne
testified that Ohio Power would already be overcomplying
with the federal law in Phase I and, therefore, additional
Phase I compliance strategies were unnecessary for Ohio
Power. Fayne also cautioned that according to company
studies, a Phase I fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4 would not necessarily be less costly
for Ohio Power customers.
During the pendency of the case, a stipulation was
entered into in a companion electric fuel component case,
which stipulation has been challenged on appeal. See
Indus. Energy Consumers of Ohio Power Co. v. Pub. Util.
Comm. (1994), Ohio St.3d , N.E.2d . This
stipulation, among other things, set a predetermined price
for calculating Ohio Power's electric fuel component rate
for all coal burned at Gavin, Muskingum, Mitchell and
Cardinal for a three-year period; set a "station cap" for
the cost of coal burned at Gavin; and "capped" the costs
for which Ohio Power could seek recovery in connection
with the installation of scrubbers at Gavin. As a result
of this stipulation, a further case study was generated to
show the effect of the stipulation on Ohio Power's plan.
That study (Case 2CS) showed that the stipulation would
further reduce AEP revenue requirements in the Case 2
scenario, making the installation of scrubbers at Gavin an
even more cost-effective compliance option. However, Case
2CS was merely a variation of Case 2 and, thus, it also
assumed that Cardinal Unit 1 and Muskingum Units 1-4 would
be fuel-switched at the beginning of Phase II.
In an order dated November 25, 1992, the commission
found that Ohio Power's environmental compliance plan
which incorporated the effects of the stipulation in the
electric fuel component proceeding -- Case 2CS -- was a
reasonable and least-cost strategy for compliance with the
CAAA. The commission determined that the next least-cost
strategy was represented in Case 2, which study also
assumed that Gavin would be retrofitted with scrubbers.
Additionally, the commission found that a Phase I
fuel-switch at Cardinal Unit 1, if carried out, would
constitute a further "least-cost measure" to be undertaken
by Ohio Power. In this regard, the commission suggested
that Ohio Power prepare to fuel-switch Cardinal Unit 1 in
Phase I, and that Ohio Power designate Conesville Unit 4

(another AEP Phase I affected unit) and Muskingum Units
1-4 as "transfer units." The commission found that Ohio
Power's plan was adequately documented, and specifically
determined that all seven factors listed in R.C.
4913.04(A) had been satisfied. However, the commission's
order was unclear as to whether Ohio Power's plan had been
approved as filed, or whether the plan had been modified
by a required Phase I fuel-switch at Cardinal.
Industrial Energy Consumers of Ohio Power Company
("IEC") and the Sierra Club, appellants, applied for
rehearing. In an entry denying rehearing, the commission
stated that Ohio Power's plan had been approved as filed,
and that the commission had only "strongly suggested" that
Ohio Power take steps to have Cardinal available for
fuel-switching in Phase I while designating Conesville
Unit 4 and Muskingum Units 1-4 as transfer units. The
commission also stated that it would expect Ohio Power in
subsequent fuel cases "to demonstrate a reduced revenue
requirement at least equal to the total revenue
requirement benefit identified in this case resulting from
a Cardinal fuel switch * * *."
The cause is now before this court upon an appeal as
of right.

Emens, Kegler, Brown, Hill & Ritter, Samuel C.
Randazzo, Richard P. Rosenberry and Denise C. Clayton, for
appellant Industrial Energy Consumers of the Ohio Power
Company.
Hahn, Loeser & Parks, Janine L. Migden and Maureen R.
Grady, for intervening appellant Sierra Club.
Lee Fisher, Attorney General, James B. Gainer, Thomas
W. McNamee and Craig S. Myers, Assistant Attorneys
General, for appellee commission.
Edward J. Brady, Kevin F. Duffy and Richard Cohen,
for intervening appellee Ohio Power Company.

Douglas, J. The primary issue which has been
properly raised in this appeal is whether the commission
approved an environmental compliance plan that was not
least-cost, thereby constituting a violation of R.C.
4913.04. For the reasons that follow, we decline to
disturb the commission's determination approving Ohio
Power's plan. Accordingly, we affirm the commission's
order.
I
To begin our discussion, we note that this court is
ordinarily called upon to review commission decisions
involving ratemaking. Although the case before us
obviously affects rates (as is true with virtually
everything the commission does), we are confronted here
with a decision of the commission which ventures into the
field of policymaking concerning the best and least-cost
way for a utility to comply with the CAAA. While the
standard of review remains the same (to wit: the
"unlawful or unreasonable" standard specified in R.C.
4903.13), we nevertheless recognize that in reviewing such
determinations, we are being called upon not only to

review the lawfulness of the commission's order, but also
to review its wisdom in reaching its conclusions. Because
such a review could tend to also place this court in the
policymaking arena, we continue our policy of not
second-guessing the commission in its fundamental
determinations which are not unlawful or unreasonable. We
are cognizant of the fact that our decision in this case
has significant implications concerning the continued
viability of Ohio's high-sulfur coal mining industry, but
our judgment is based strictly on the CAAA and the
commission's prerogatives in approving a least-cost
environmental compliance plan which satisfies the
requirements of the federal law.
II
Ohio Power's environmental compliance plan was
submitted to the commission for review and approval in the
context of the overall AEP system-wide compliance plan.
While we recognize that this was necessary for purposes of
evaluating the Ohio Power plan, it is important to realize
that only Ohio Power's plan for compliance with the CAAA
is at issue in this case. The commission's order and the
arguments of the parties, both for and against the
commission's ultimate determination, are less than a model
of clarity, but that may be driven by the fact that the
information being reviewed, the federal and state laws and
the reports, studies and expert testimony, is voluminous
and very technical. Nevertheless, it is apparent to us
what the commission sought to do in this case, and we find
that the commission's order is neither unlawful nor
unreasonable.
III
Pursuant to R.C. 4913.04(A), the commission was
required to make a number of findings in approving Ohio
Power's plan. The specific commission finding, around
which the present controversy swirls, is that Ohio Power's
plan constitutes a reasonable and least-cost strategy for
compliance with the Phase I acid rain control requirements
of the CAAA. R.C. 4913.04(A) provides, in pertinent part:
"[T]he public utilities commission shall issue an
order approving a proposed environmental compliance plan
submitted by an electric light company under section
4913.02 of the Revised Code, and the estimated costs of
and schedule for implementing the plan, only if the
commission finds that the plan is adequately documented
and makes all of the following findings regarding the plan:
"* * *
"(2) The plan constitutes a reasonable and
least-cost strategy for compliance with the applicable * *
* [Phase I acid rain control requirements of the CAAA]
that is consistent with providing reliable, efficient, and
economical electric service. Least-cost shall be measured
over the period of both the Phase I and Phase II acid rain
control requirements under * * * [the CAAA]."
By far the most significant issue litigated at the
commission level involved the question whether it would be
more cost effective to fuel-switch or to install scrubbers
at Ohio Power's Gavin plant. The Gavin power plant is the

single largest emitter of sulfur dioxide in the entire AEP
system and represents a significant portion of the AEP
system capacity. For this reason, among others, the Phase
I compliance action to be taken at Gavin was the
cornerstone of the AEP system-wide acid rain compliance
plan upon which Ohio Power's plan was based.
In a detailed and comprehensive decision, the
commission determined that Ohio Power's plan to install
scrubbers at Gavin was the least-cost alternative for
Phase I compliance. Under the applicable standard of
review, we will not reverse the commission's decision as
to questions of fact where sufficient probative evidence
is contained in the record to show that the commission's
decision is not manifestly against the weight of the
evidence and is not so clearly unsupported by the record
as to show misapprehension, mistake, or willful disregard
of duty. See MCI Telecommunications Corp. v. Pub. Util.
Comm. (1988), 38 Ohio St.3d 266, 268, 527 N.E.2d 777, 780.
Ohio Power's case studies showed that on an
eighteen-year net present value basis, AEP's revenue
requirements under the plan to install scrubbers at Gavin
(Case 2) was an estimated $121 million less than the
estimated revenue requirements for the Gavin fuel-switch
(Case 1) alternative. Further, if low-sulfur coal costs
were to escalate more rapidly, and high-sulfur coal more
slowly, than was assumed in Cases 1 and 2, the estimated
revenue requirements under the Gavin-scrubber plan were
shown to be $244 million less than the Gavin fuel-switch
alternative (Case 1S compared to Case 2S). Moreover, when
Ohio Power's plan was considered in light of the
stipulation entered into in the electric fuel component
proceeding (Case 2CS), installing scrubbers at Gavin was
shown to be an even less costly compliance measure than
had been projected in Case 2. This evidence and more
contained in the record supports the commission's factual
determination under R.C. 4913.04(A)(2) that Ohio Power's
proposal to install scrubbers at Gavin was an integral
part of a reasonable and least-cost plan for Phase I
compliance.
Nevertheless, appellants contend that the evidence in
this case establishes that had Ohio Power's plan also
included a Phase I fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4, that plan would further reduce
compliance costs for the AEP system. On this basis,
appellants urge that the commission's finding under R.C.
4913.04(A)(2) was unlawful since the plan approved by the
commission did not provide for a Phase I fuel-switch at
Cardinal Unit 1 and Muskingum Units 1-4 and, thus, the
plan did not constitute the least-cost compliance
strategy. Our response to appellants' arguments is
threefold.
First, R.C. 4913.04(A)(2) requires a finding that an
environmental compliance plan constitutes a reasonable and
least-cost strategy for compliance with the Phase I acid
rain control requirements of the CAAA. The evidence in
this case is in conflict as to the reasonableness of
requiring a fuel-switch at Cardinal Unit 1 and Muskingum

Units 1-4 in Phase I. The evidence shows that such
additional compliance strategies are unnecessary for Ohio
Power, which will already be substantially overcomplying
with the applicable federal mandates in Phase I. Further,
a question remains as to whether a Phase I fuel-switch at
these facilities would, in fact, be a least-cost strategy
for Ohio Power. The commission chose not to disturb the
company's decision to delay compliance action at these
facilities. As in rate cases, it is not our job to
question the wisdom of the commission on matters such as
this, where the commission has made a determination on a
fairly debatable issue within its expertise and
understanding. See, generally, AT&T Communications of
Ohio, Inc. v. Pub. Util. Comm. (1990), 51 Ohio St.3d 150,
154, 555 N.E.2d 288, 292-293.
Second, we are extremely skeptical of an
interpretation of R.C. 4913.04(A)(2) that would make
commission approval of an environmental compliance plan
contingent upon the company's having proposed to undertake
every cost-efficient compliance action possible,
regardless whether such action is necessary for the
company to achieve compliance with the CAAA. In our
judgment, the question to be answered under R.C.
4913.04(A)(2) is whether the compliance measures chosen by
the company are the least-cost measures to bring the
company into Phase I compliance. For the commission or
this court to interpret R.C. 4913.04(A)(2) as requiring
disapproval of a plan that satisfies the minimum
requirements of the federal law in a least-cost manner, on
the basis that it may be more cost-efficient for the
company to take additional compliance action during Phase
I, would be to subject those affected by the CAAA to even
more burdensome requirements than have already been
exacted by virtue of the federal law. In the case at bar,
the record is clear that Ohio Power will be able to
achieve compliance with the applicable federal mandates by
installing scrubbers at Gavin alone. As we have
indicated, the commission's finding that installing
scrubbers at Gavin is a reasonable and least-cost
compliance strategy is a factual determination which we
will not disturb, given the standard by which such a
determination must be judged.
Third, and finally, even if we were to assume that
the commission erred in approving the plan because of the
Cardinal/Muskingum fuel-switch controversy, we would
nevertheless find that appellants have not been prejudiced
by the commission's decision. In its order, the
commission apparently considered Ohio Power's proposal to
delay the fuel-switch at Cardinal Unit 1 and Muskingum
Units 1-4 as a "scheduling" issue involving implementation
of the plan. The commission apparently sought to approve
Ohio Power's plan to fuel-switch Cardinal Unit 1 and
Muskingum Units 1-4, but to defer final judgment on the
scheduling/timing of the fuel-switch at these facilities.
In this regard, counsel for the commission has suggested
that Ohio Power's plan to delay compliance action at
Cardinal Unit 1 and Muskingum Units 1-4 may be considered

by the commission in its two-year review of the plan under
R.C. 4913.05. Counsel for the commission also suggests
that since Ohio Power could achieve Phase I emission
reductions by installing scrubbers at Gavin alone, the
R.C. 4909.157(A) "prudence" protection associated with
commission approval of an environmental compliance plan
does not extend to Ohio Power's decision to delay a
fuel-switch at Cardinal Unit 1 and Muskingum Units 1-4.
In its brief, Ohio Power argues, among other things,
that since a Phase I fuel-switch at Cardinal Unit 1 and
Muskingum Units 1-4 is unnecessary for Ohio Power to meet
the Phase I requirements of the CAAA, such compliance
measures were arguably beyond the proper scope of the
commission's inquiry in this case. Thus, Ohio Power
apparently agrees that the commission's approval of the
plan did not extend any protections to Ohio Power with
respect to the company's proposal to delay compliance
action at Cardinal Unit 1 and Muskingum Units 1-4. Ohio
Power's position on this issue was further clarified at
oral argument, where Ohio Power conceded that it will be
willing to do whatever the commission requests at the
two-year review of the plan which is shown to be prudent
and least-cost with respect to the implementation of
compliance measures at Cardinal Unit 1 and Muskingum Units
1-4.
Under these circumstances, even if we were to
conclude that Ohio Power's plan was not least-cost, we
would nevertheless find that appellants have not been
harmed by the commission's approval of the plan. At the
R.C. 4913.05 review, appellants will be able to voice
their concerns regarding the scheduling/implementation of
the fuel-switch at Cardinal Unit 1 and Muskingum Units
1-4. Additionally, we note that in its entry denying
rehearing, the commission "strongly suggested" that Ohio
Power prepare to fuel-switch Cardinal Unit 1 in Phase I
while designating Muskingum Units 1-4 as transfer units.
The commission has indicated, in no uncertain terms, that
it intends to enforce compliance with its order to ensure
cost-effective implementation of the plan. With
mechanisms peculiar to and within its control, the
commission will almost certainly be able to make its
"suggestions" much more than that.
IV
Appellants also challenge the commission's finding
that Ohio Power's plan was adequately documented.
However, we find that the record does not support
appellants' contentions. Although the plan may not have
been documented to the degree appellants would have
preferred, we have no quarrel with the commission in this
regard. Appellants also contend that the commission erred
in failing to address certain issues raised in their
application for rehearing. However, on the basis of the
record before us, we are unable to conclude that the
commission's decision would have been any different had
the arguments raised by appellants been addressed.
Appellants also suggest that the commission's decision
must be reversed if the stipulation at issue in Indus.

Energy Consumers of Ohio Power Co. v. Pub. Util. Comm.
(1994), Ohio St.3d , N.E.2d , is found to be
unlawful. However, in that case, we upheld the validity
of the stipulation.
Appellant IEC further challenges the commission's
decision, claiming that Ohio Power and/or the commission
unlawfully modified the proposed plan. We find no support
for this proposition in the record. Ohio Power's plan
called for installing scrubbers at Gavin, switching to
lower-sulfur coal at Muskingum Unit 5 and Kammer Units
1-3, and continuing to burn existing fuel supplies at Ohio
Power's remaining Phase I affected units. The plan
proposed by Ohio Power was based upon the AEP system-wide
compliance strategy which included provisions for a Phase
II fuel-switch at Cardinal Unit 1 and Muskingum Units
1-4. Throughout the entire proceeding, Ohio Power's
compliance strategy remained unchanged. Thus, no
modification occurred. Additionally, with regard to the
commission's alleged modification of the plan, the
commission specifically stated in its entry denying
rehearing that Ohio Power's plan had been approved as
filed. Furthermore, even if the commission did modify the
plan by requiring a Phase I fuel-switch at Cardinal Unit
1, that is precisely what IEC has suggested would have
resulted in a least-cost plan. Thus, IEC would not have
been prejudiced by the alleged modification.
Finally, appellants raise a number of arguments
concerning the constitutionality of Am.Sub.S.B. No. 143,
144 Ohio Laws, Part I, 817, the legislation which enacted,
inter alia, R.C. Chapter 4913. Appellants claim that
Am.Sub.S.B. No. 143, through its various provisions,
creates a preference for Ohio high-sulfur coal,
discriminates against out-of-state low-sulfur coal
suppliers, and, thus, violates the Commerce Clause of the
United States Constitution. However, we find that
appellants lack standing to challenge the
constitutionality of this legislation.
In Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d
169, 512 N.E.2d 971, syllabus, this court held that:
"The constitutionality of a state statute may not be
brought into question by one who is not within the class
against whom the operation of the statute is alleged to
have been unconstitutionally applied and who has not been
injured by its alleged unconstitutional provision."
The class against whom Am.Sub.S.B. No. 143 is alleged
to be unconstitutionally applied is out-of-state coal
suppliers. Appellants are not members of that class.
Moreover, appellants have failed to demonstrate, to our
satisfaction, that they have been injured by the
provisions of the legislation which are alleged to be
unconstitutional. Insofar as appellants lack standing to
challenge the constitutionality of Am.Sub.S.B. No. 143, it
would be wholly inappropriate at this time to make any
further comment on the issue.
V
For the foregoing reasons, we affirm the commission's
order approving Ohio Power's environmental compliance plan.

Order affirmed.
Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.
Fain, J., dissents.
Mike Fain, J., of the Second Appellate District,
sitting for Wright, J.
FOOTNOTES:
1 "Environmental compliance plan" is defined in R.C.
4913.01(B) to mean "a plan developed by an electric light
company to comply with the acid rain control requirements
at all generating facilities owned by the company that are
affected by the Phase I acid rain control requirements."
2 "Acid rain control requirements" is defined in R.C.
4913.01(D) to mean the Phase I acid rain control
requirements of the CAAA.
3 R.C 4909.157(A) provides that after the commission
has approved an environmental compliance plan under R.C.
Chapter 4913, the commission cannot reconsider the
approval of the plan or the appropriateness or prudence of
any compliance measure contained therein, except as
otherwise provided in R.C. 4913.05 or 4913.06. R.C.
4913.05 mandates that the commission must review a plan
which has been approved under R.C. 4913.04 between two and
two and one-half years after the approval, or earlier in
the event of an extraordinary change of circumstances.
R.C. 4913.06 permits an electric light company to seek
review and approval of a modified plan. However, nothing
in R.C. 4909.157(A) limits the commission's authority
under R.C. Chapters 4901, 4903, 4905 or 4909 to examine
the management policies and practices of an electric light
company that is a public utility in implementing a
compliance measure contained in an approved plan or to
examine the costs incurred by the company for implementing
any such compliance measure. R.C 4909.157(B). Nor do the
provisions of R.C. 4909.157(A) limit the commission's
authority under R.C. Chapters 4901, 4903, 4905 or 4909 to
examine the company's fuel procurement policies and
practices. R.C. 4909.157(C).
4 In that report, AEP developed a least-cost strategy
for Phase I compliance for the AEP system. The AEP
"system" includes electric utilities which service
customers in parts of Ohio and other states. In
formulating its least-cost compliance strategy, AEP
determined the compliance options for each Phase I
affected electric utility generating unit within the
system and ranked those options in terms of cost
effectiveness, i.e., cost per ton of sulfur dioxide
removed. The options were then selected in order of
increasing cost per ton until compliance was achieved.
Specifically, compliance strategies with a cost
effectiveness of less than four hundred dollars per ton
were selected for implementation to meet the Phase I
requirements of the CAAA, with the exception of Ohio
Power's Cardinal Unit 1. The compliance measure deemed
applicable to that unit (fuel-switching from high-sulfur
coal to low-sulfur coal) was deferred until Phase II. The
AEP report concluded that the least-cost compliance

strategy for the AEP system would include installation of
scrubbers at Ohio Power's Gavin Units 1 and 2, a
fuel-switch at Ohio Power's Muskingum Unit 5 from
high-sulfur coal to low-sulfur coal, and a fuel-switch at
Ohio Power's Kammer Units 1-3 from high-sulfur coal to
moderate-sulfur coal.
5 According to the AEP report, the decision to delay
compliance action at Cardinal Unit 1 was made because
implementing a fuel-switch at that unit would be the
highest-cost option for Ohio jurisdictional customers,
when Ohio Power would already be overcomplying with the
federal law on a "stand-alone" basis. Further, a
fuel-switch at Cardinal Unit 1 would necessitate closure
of a company-affiliated mine.
Indus. Energy Consumers v. Pub. Util. Comm.
Fain, J., dissenting. The majority opinion is an
admirably practical way of dealing with an admittedly
difficult problem, but I cannot read R.C. 4913.04(A)(2) in
the same way. That provision requires that a plan for
complying with the federal Clean Air Act Amendments of
1990, in order to be approved by the Public Utilities
Commission, must, among other requirements, constitute "a
reasonable and least-cost strategy for compliance with the
applicable acid rain control requirements that is
consistent with providing reliable, efficient, and
economical electric service." Once a plan has been
approved, a utility's implementation of the plan is
declared by statute to be a prudent management decision
for rate-making purposes. R.C. 4909.157(A).
Although Ohio Power's plan called for switching from
high-sulfur coal at several locations when Phase I of the
federal Act begins in 1995, and also for using scrubbers
at the Gavin locations at that time, the plan for several
other locations called for no changes until Phase II, in
2000. Ohio Power has never sought to modify its plan.
There may have been conflicting evidence as to
whether the alternative strategy of switching to
low-sulfur coal or natural gas at the other locations
(Cardinal Unit I and Muskingum Units 1-4) in 1995 would
cost less than waiting until 2000 to do so, but the fact
is that the commission found that the earlier fuel switch
at those locations would cost less, and there is evidence
in the record to support that finding.
In view of the commission's finding that a strategy
of switching to low-sulfur fuels at the other locations in
1995, rather than waiting until 2000 to do so, would cost
significantly less, I cannot conclude that the plan
actually submitted by Ohio Power is a "reasonable and
least-cost strategy" for compliance with applicable acid
rain control requirements. It may lie within the universe
of all "reasonable" strategies for compliance, but it is
not "least-cost," and the requirement is in the
conjunctive.
I would reverse the commission's approval of the plan
submitted by Ohio Power, and remand this matter to the
commission, which could, and should, encourage Ohio Power
to modify its plan to provide for earlier fuel switches at

Cardinal Unit I and Muskingum Units 1-4.