The Supreme Court of Ohio today ruled the state’s utility consumer advocate can challenge the 2023 approval of Duke Energy of Ohio’s natural gas rate plan for the Cincinnati area.

Duke Energy challenged the Office of Consumers’ Counsel right to appeal the Public Utilities Commission of Ohio’s (PUCO) approval of Duke’s increase in natural gas distribution rates and an alternative rate plan. The dispute centered on the timing of when the consumers’ counsel could file an appeal with the Supreme Court.

Writing for the Court majority, Justice R. Patrick DeWine stated the controversy stems from the PUCO’s application of In re Application of Moraine Wind LLC, a 2024 Supreme Court decision in a separate utility case. In Moraine Wind, the Court held that a long-standing PUCO practice of granting itself unlimited extensions of the time to decide whether to rehear its decisions was illegal. That decision was important because a PUCO decision cannot be appealed to the Supreme Court until the rehearing process is complete.

Justice DeWine explained that Moraine Wind did not impact the consumers’ counsel’s right to challenge Duke Energy’s rate increase. The Court resolved the current issue by applying state law and finding the consumers’ counsel appealed within the permitted time limits.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion.

Justice Jennifer Brunner dissented without a written opinion. Justice Joseph T. Deters did not participate in the case.

Appeal Challenge Sparked by Supreme Court Order in Another Case
To understand Duke Energy’s objection to the consumers’ counsel appeal, Justice DeWine wrote that it was necessary to understand the Court’s decision in Moraine Wind. In Moraine Wind, the Court ended the PUCO’s long-standing practice of illegally granting itself extensions to decide applications for rehearings.

Once the PUCO issues a decision, a party in a utility case can seek a rehearing to contest it. Under state law, the PUCO must grant or deny an application for a rehearing within 30 days—otherwise, it is deemed denied by law after 30 days. In Moraine Wind and prior cases, the PUCO was granting rehearing for the sole purpose of deciding whether or not to grant a rehearing. In other words, the PUCO was giving itself indefinite extensions to decide whether or not to grant a rehearing. The Court ruled the PUCO has no authority to extend its deadline for granting or denying a rehearing.

A week after the Moraine Wind decision, the PUCO issued an entry acknowledging it could no longer extend its rehearing considerations. It then closed all the cases where rehearing decisions were pending for more than 30 days after the applications for rehearing were filed.

Duke Energy Challenge Snagged by Case Closure
Duke Energy’s rate increase was granted on Nov. 1, 2023. The consumers’ counsel applied for a rehearing 30 days later, on Dec. 1, 2023. Following its long-standing practice, the PUCO granted the consumers’ counsel rehearing application, but only for the purpose of determining whether to rehear the case.

The Court stated today that the parties could have recognized that the PUCO only had 30 days to decide the issue and that by taking no action, the rehearing was denied “by operation of law” on Jan. 1, 2024. After that, the opinion noted, the consumers’ counsel had 60 days to appeal the approval of Duke Energy’s plan to the Court. Instead, the consumers’ counsel filed a second application for a rehearing with the PUCO in January 2024, arguing the PUCO had no authority to grant itself an extension.

The consumers’ counsel’s second application for a rehearing was still pending before the PUCO when, eight months later, the Court issued its Moraine Wind decision. Shortly after, the PUCO applied Moraine Wind to the consumer’s counsel application for a rehearing and several other applications in other cases. The PUCO determined the consumer’s counsel’s case ended in January when it was denied by operation of law and ordered the case closed.

The consumers’ counsel argued by applying Moraine Wind retroactively, the PUCO eliminated its ability to appeal the case to the Court. The consumers’ counsel filed a third application for a rehearing on Sept. 9, 2024, days after the PUCO closed the case. When the commission denied the third application, the consumers’ counsel appealed to the Court in October 2024.

Duke Energy asked the Court to dismiss the case. Duke Energy made two arguments. It argued Moraine Wind should be applied retroactively, which would mean the consumers’ counsel missed its chance to appeal. Alternatively, it argued if Moraine Wind does not apply retroactively, then the matter is still pending before the PUCO, so it is not yet time for the Court to consider the case.

Supreme Court Applied Rehearing Law
The Court stated the parties focus on whether the Moraine Wind decision should be applied retroactively. However, the matter was controlled by applying R.C. 4903.11, which governs when the denial of an application for a rehearing can be appealed to the Court, the opinion stated.

Under R.C. 4903.11 there are three “triggering events” that allow an appeal of a commission decision to the Supreme Court. An appeal can be filed within 60 days of a request for a rehearing being denied by operation of law, which is what happens when the PUCO takes no action within 30 days after a rehearing was requested. An appeal can also be filed after “the entry upon the journal of the commission of the order denying an application for a rehearing.” Last, an appeal can be filed if the PUCO conducts a rehearing and issues its final decision in the case.

The Court noted that one might presume that only one of the three triggering events would occur in any case.

“But this was far from an ordinary case,” the opinion noted, explaining that after the consumers’ counsel’s application for rehearing was denied by operation of law, the PUCO journalized an entry to make clear the consumers’ counsel case was closed by operation of law. So even though the PUCO ruled the consumer’s counsel rehearing application was denied by operation of law in January 2024, it journalized an entry in September 2024 denying a rehearing, triggering the consumers’ counsel’s right to appeal to the Court. The Court stated that nothing in R.C. 4903.11 makes the three triggering events exclusive.

Because the journal entry meets one of the three triggering events in R.C. 4903.11, the consumers’ counsel had 60 days from the entry to appeal. It did so in October 2024, meeting the legal requirement for the case to be considered by the Court, the opinion concluded. The Court therefore ultimately denied Duke Energy’s motion to dismiss.

2024-1505. In re Application of Duke Energy Ohio, Inc., Slip Opinion No. 2025-Ohio-2082.

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