NIPSCO Industrial Group v. Northern Public Service Company ( 2018 )


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  •                                                                      FILED
    Jun 20 2018, 11:53 am
    IN THE
    Indiana Supreme Court
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    Supreme Court Case No. 18S-EX-334
    NIPSCO Industrial Group
    Appellant (Intervenor),
    –v–
    Northern Indiana Public Service Company
    Appellee (Petitioner).
    Argued: November 21, 2017 | Decided: June 20, 2018
    Appeal from the Indiana Utility Regulatory Commission
    No. 44403-TDSIC-4
    On Petition to Transfer from the Indiana Court of Appeals
    No. 93A02-1607-EX-1644
    Opinion by Justice Slaughter
    Chief Justice Rush and Justices David, Massa, and Goff concur
    Slaughter, Justice.
    Under traditional rate regulation, an energy utility must first make
    improvements to its infrastructure before it can recover their cost through
    regulator-approved rate increases to customers. The process for recouping
    these costs, sometimes not until years after they were incurred, is an
    expensive, onerous ratemaking case, which involves a comprehensive
    review of the utility’s entire business operations.
    In 2013 the legislature authorized utilities to obtain regulatory
    preapproval for “designated” improvements to their infrastructure.
    Under the so-called “TDSIC” Statute—which provides for more prompt
    reimbursement of specified transmission, distribution and storage system
    improvements—a utility can seek regulatory approval of a seven-year
    plan that designates eligible improvements, followed by periodic petitions
    to adjust rates automatically as approved investments are completed.
    At issue here is the Indiana Utility Regulatory Commission’s
    preapproval of approximately $20 million in infrastructure investments
    for which the Commission authorized increases to NIPSCO’s natural-gas
    rates under the TDSIC mechanism. NIPSCO is an energy utility with more
    than 800,000 customers in northern Indiana. Some of NIPSCO’s largest
    industrial customers—represented here by the NIPSCO Industrial
    Group—oppose NIPSCO’s entitlement to favorable rate treatment under
    the TDSIC Statute, contending the disputed projects do not comply with
    the Statute’s requirements.
    The Commission’s holding below, which divided our Court of Appeals,
    approved various categories of improvements—referred to variously as
    “project categories”, “multiple-unit-project categories”, and “multiple-
    unit projects”—that describe broad parameters for identifying future
    improvements but do not designate those improvements with specificity.
    NIPSCO defends these categorical designations by arguing it does not,
    and cannot, know in advance which specific segments of natural-gas pipes
    throughout its system will fail each year. But it does know, based on
    historical performance, that a certain percentage of its system will need to
    be replaced annually. NIPSCO contends the TDSIC Statute permits the
    Commission to approve a seven-year plan that describes future
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018       Page 2 of 17
    investments in terms of ascertainable planning criteria, although when its
    plan was approved, NIPSCO did not know which specific segments of its
    system would need to be replaced.
    The Industrial Group, in contrast, interprets the TDSIC Statute more
    narrowly. It argues the Statute requires the utility and the Commission to
    designate specific projects upfront, rather than to rely on categories of
    projects not identified with specificity until later years. For the Industrial
    Group, the traditional ratemaking case is still the primary process for
    seeking reimbursement, subject to occasional use of the TDSIC procedure
    in the limited band of investments to which it applies.
    The stakes are much larger than just the roughly $20 million at issue
    between NIPSCO and the Industrial Group. The Commission, we are told,
    has approved billions of dollars of utility-infrastructure investments
    through the TDSIC process. Given the favorable regulatory treatment,
    utilities are likely to funnel increasing amounts of infrastructure
    investments through this reimbursement mechanism. How we resolve
    these competing visions of the TDSIC Statute will likely have enormous
    financial consequences for utilities and their customers.
    We conclude the TDSIC Statute permits periodic rate increases only for
    specific projects a utility designates, and the Commission approves, in the
    threshold proceeding and not for multiple-unit projects using
    ascertainable planning criteria. In other words, a utility must specifically
    identify the projects or improvements at the outset in its seven-year plan
    and not in later proceedings involving periodic updates. There is an
    appreciable difference between designating specific “projects” and
    “improvements” up front, which the Statute requires, and describing the
    criteria for selecting them later, which the Commission approved. We
    agree with the Court of Appeals’ dissenting opinion that Commission
    approval of “broad categories of unspecified projects defeats the purpose
    of having a ‘plan’.” NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 
    78 N.E.3d 730
    , 740 (Ind. Ct. App. 2017) (Barnes, J., dissenting).
    Because we find that preclusion principles do not bar our consideration
    of this important legal issue of first impression, we grant transfer, reverse
    the Commission’s order in part, and remand.
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018          Page 3 of 17
    Factual and Procedural History
    A. Traditional utility regulation
    Utility regulation is premised on a “regulatory compact” in which the
    State sanctions a utility’s monopoly within a defined service area and
    subjects the utility to various regulatory restrictions and responsibilities.
    As a quid pro quo for being granted a monopoly in a
    geographical area for the provision of a particular good or
    service, the utility is subject to regulation by the state to ensure
    that it is prudently investing its revenues in order to provide
    the best and most efficient service possible to the consumer.
    United States Gypsum, Inc. v. Ind. Gas Co., 
    735 N.E.2d 790
    , 797 (Ind. 2000)
    (quotation and citations omitted).
    The State regulates utilities through the Commission, which is
    authorized by statute to act with “technical expertise to administer the
    regulatory scheme designed by the legislature … to insure that public
    utilities provide constant, reliable, and efficient service to the citizens of
    Indiana.” N. Ind. Pub. Serv. Co. v. United States Steel Corp., 
    907 N.E.2d 1012
    ,
    1015 (Ind. 2009) (citation omitted). See Ind. Code §§ 8-1-1-1 to 8-1-1-15.
    When exercising this authority, the Commission balances the public’s
    need for adequate, efficient, and reasonable service with the public
    utility’s need for sufficient revenue to meet the cost of furnishing service
    and to earn a reasonable profit. United States 
    Gypsum, 735 N.E.2d at 797-98
    .
    “Proper rates are those which produce a fair and nonconfiscatory return,
    and such as will enable the company, under efficient management, to
    maintain its utility property and service to the public, and provide a
    reasonable return upon the fair value of its used and useful property.”
    Pub. Serv. Comm'n of Ind. v. Ind. Bell Tel. Co., 
    235 Ind. 1
    , 15, 
    130 N.E.2d 467
    ,
    473 (1955) (citations omitted).
    Traditionally, utility rates are adjusted through general ratemaking
    cases. General ratemaking is a “comprehensive” process, requiring the
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018            Page 4 of 17
    Commission to “examine every aspect of the utility’s operations and the
    economic environment in which the utility functions to ensure that the
    data [the Commission] has received are representative of operating
    conditions that will, or should, prevail in future years.” United States
    
    Gypsum, 735 N.E.2d at 798
    (citation omitted).
    B. The TDSIC process
    Over the years, the legislature has supplemented traditional
    ratemaking with various “tracker” procedures that allow utilities to ask
    the Commission to adjust their rates to reflect various costs without
    having to undergo a full ratemaking case. The TDSIC Statute, I.C. ch. 8-1-
    39, enacted in 2013, is one such procedure. It encourages energy utilities to
    replace their aging infrastructure by modernizing electric or gas
    transmission, distribution, and storage projects. This TDSIC procedure,
    pronounced “tee-DEE-zick”, is a process for utilities to assess a distinct
    charge—a Transmission, Distribution, and Storage System Improvement
    Charge—for completed projects deemed eligible improvements under the
    Statute. In contrast to traditional ratemaking, the TDSIC procedure
    permits a utility to seek preapproval of designated capital improvements
    to the utility’s infrastructure and then to recover the costs of those
    improvements every few months as they are completed. Eligible
    improvements are certain new or replacement utility projects that:
    (1) a public utility undertakes for purposes of safety, reliability,
    system modernization, or economic development . . . ; (2) were
    not included in the public utility’s rate base in its most recent
    general rate case; and (3) [were] designated in the public
    utility’s seven (7) year plan and approved by the commission
    under section 10 of this chapter as eligible for TDSIC
    treatment”.
    I.C. § 8-1-39-2.
    The TDSIC Statute contemplates two distinct types of proceedings.
    First, under Section 10, the utility may seek regulatory approval of a
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018           Page 5 of 17
    seven-year plan for designated improvements to transmission,
    distribution, and storage systems. See 
    Id. § 8-1-39-10.
    The Commission
    shall then approve the plan and designate the planned improvements as
    eligible for TDSIC treatment if it finds the plan is reasonable. 
    Id. § 8-1-39-
    10(b). When determining that a plan is reasonable, the Commission’s
    order must include (1) “[a] finding of the best estimate of the cost of the
    eligible improvements”, (2) “[a] determination whether public
    convenience and necessity require or will require the eligible
    improvements”, and (3) “[a] determination whether the estimated costs of
    the eligible improvements … are justified by the incremental benefits
    attributable to the plan”. 
    Id. Second, under
    Section 9, once the Commission has approved a seven-
    year plan, the utility may petition every few months for periodic rate
    adjustments to recover “eighty percent (80%) of approved capital
    expenditures and TDSIC costs” for the system improvements designated
    as eligible and actually completed. 
    Id. §§ 8-1-39-9(a),
    (c), (e). The
    remaining twenty percent can be recovered only “as part of the next
    general rate case that the public utility files with the commission.” 
    Id. § 8-
    1-39-9(b). The utility must “update [its] seven (7) year plan under
    subdivision (2) with each petition [it] files under this section.” 
    Id. § 8-1-39-
    9(a). Before a utility may recover additional costs above approved
    estimates, it must specifically justify the additional costs, and the
    Commission must specifically approve them. 
    Id. § 8-1-39-
    9(f).
    C. NIPSCO’s TDSIC litigation
    1. Designated vs. described
    The parties dispute what qualifies as an eligible project under Section 2,
    which requires both designation and approval of the project in a seven-
    year plan the Commission approves under Section 10. I.C. § 8-1-39-2(3)(A).
    The Industrial Group claims the Commission can designate and approve
    projects identified only during the initial Section 10 process, and not
    during subsequent Section 9 petitions. It also claims that the TDSIC
    process is an extraordinary mechanism, applicable only in limited
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018            Page 6 of 17
    circumstances, and that the general ratemaking case remains the
    presumptive process for utilities to recover their investment costs.
    NIPSCO, in contrast, argues the Commission can properly designate
    and approve multiple-unit projects, described using ascertainable
    planning criteria, as TDSIC-eligible. NIPSCO characterizes these multiple-
    unit projects, generally, as planned undertakings that include component
    parts that need to be improved, but without knowing in advance which
    specific parts will require replacement. Here, the United States
    Department of Transportation mandates that NIPSCO annually inspect
    thousands of units of natural-gas pipelines throughout its system.
    NIPSCO does not know in advance which specific pipeline segments
    within its system it will need to update. But based on historical
    performance, NIPSCO expects a certain percentage of its system will fail
    each year and require replacement. Depending on the inspection results,
    NIPSCO then develops a schedule to replace worn assets. This
    information enables NIPSCO to identify the specific units of work
    completed within the multiple-unit projects for which it received
    Commission approval.
    2. Current procedural posture
    Shortly after the TDSIC Statute was enacted, NIPSCO filed two Section
    10 petitions, seeking approval of separate, but substantially similar, seven-
    year plans: one each for its electric system and its gas system. The
    Commission approved NIPSCO’s Electric Plan in February 2014 and, in a
    separate proceeding, approved its Gas Plan in April 2014. The plans
    identified specific projects for the first year and described “project
    categories” for years two through seven. NIPSCO subsequently filed
    periodic Section 9 tracker petitions, seeking rate increases associated with
    completed matters referenced in the approved seven-year plans.
    In 2015, the Court of Appeals reversed in part the Commission’s order
    approving NIPSCO’s Electric Plan. NIPSCO Indus. Grp. v. N. Ind. Pub. Serv.
    Co., 
    31 N.E.3d 1
    (Ind. Ct. App. 2015). The Electric Plan lacked sufficient
    detail for the Commission to determine whether the plan was reasonable
    and whether it included a best estimate of the cost of improvements under
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018         Page 7 of 17
    Section 10. 
    Id. at 8.
    By identifying only the first year of improvements, the
    Plan presumed that future proposed projects identified in subsequent
    Section 9 “update” proceedings would be eligible for TDSIC treatment. 
    Id. at 8-9.
    Thus, the Court held, the Plan unlawfully relieved NIPSCO of its
    burden to show the proposed projects were TDSIC-eligible. 
    Id. at 9.
    When the Electric Plan appeal was decided, NIPSCO had already
    completed its first Gas Plan Section 9 tracker petition, TDSIC-1, and the
    second, TDSIC-2, was pending. Given the legal problems with its Electric
    Plan, NIPSCO voluntarily dismissed its TDSIC-2 Gas Plan petition with
    the understanding that its next Section 9 tracker petition, TDSIC-3, would
    seek TDSIC-2 reimbursement and modification of its Gas Plan to comply
    with the appellate ruling.
    In TDSIC-3, NIPSCO again sought approval of an “updated” seven-
    year Gas Plan. Although NIPSCO provided additional information for the
    proposed projects for all seven years of its revised seven-year Gas Plan, its
    TDSIC-3 petition continued to include projects identified with specificity
    as well as yet-to-be-identified projects. NIPSCO said it would identify
    specific instances of completed improvements within certain project-
    group categories in subsequent Section 9 plan updates. The Commission
    found that TDSIC-3 presented “a unique situation” because it had already
    approved NIPSCO’s initial Section 10 Gas Plan in a final order. And it
    generally endorsed NIPSCO’s proposal to establish objective ascertainable
    criteria for selecting specific projects within “project group” categories.
    The Industrial Group did not challenge the Commission’s TDSIC-3 order
    approving NIPSCO’s petition.
    In February 2016, NIPSCO filed its fourth Section 9 petition—TDSIC-
    4—the subject of this appeal. This filing included another update to the
    Gas Plan, seeking an increase of approximately $20 million in the
    previously approved “Inspect & Mitigate” category. This category
    included both additional distinct projects and an increased number of
    projects within previously approved categories. NIPSCO referred to these
    Inspect & Mitigate project groups as “multiple-unit projects”.
    The Industrial Group intervened at the Commission and opposed this
    petition for $20 million in rate relief. Particularly, the Industrial Group
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018         Page 8 of 17
    objected to NIPSCO’s multiple-unit-projects approach, arguing that
    project groups described using objective ascertainable-standard criteria
    are not permitted under the TDSIC Statute. Despite this challenge, the
    Commission approved NIPSCO’s TDSIC-4 petition. Relying on its TDSIC-
    3 order, the Commission found NIPSCO’s multiple-unit-project categories
    were supported by sufficient ascertainable planning criteria for later
    identifying eligible improvements, and the roughly $20 million increase
    was based on “further identification of the specific projects or asset
    replacements within the approved project groups.”
    The Industrial Group appealed the Commission’s TDSIC-4 order, and a
    divided Court of Appeals affirmed. The majority held that NIPSCO’s
    updated seven-year plan was lawful “because the improvements included
    in the update were not new projects as they were chosen by utilizing the
    ascertainable planning criteria previously approved by the Commission
    and contained in NIPSCO’s 7-year 
    plan.” 78 N.E.3d at 739
    . The dissent
    believed the TDSIC Statute requires that a “specific plan” be established in
    the initial Section 10 proceedings, and that merely describing multiple-
    unit-project categories does not sufficiently designate which specific
    projects are eligible for reimbursement through later Section 9
    proceedings. 
    Id. at 740.
    Standard of Review
    When reviewing Commission decisions, we conduct three levels of
    review: one for factual findings; another for mixed questions of law and
    fact; and a third for questions of law. At issue here is the last category.
    This case does not implicate the Commission’s ratemaking expertise but
    presents a pure question of law: Does the TDSIC Statute authorize the
    Commission to approve “project categories” or “multiple-unit projects”
    described using ascertainable planning criteria?
    We review questions of law de novo, Ind. Bell Tel. Co. v. Ind. Util.
    Regulatory Comm'n, 
    715 N.E.2d 351
    , 354 (Ind. 1999) (citation omitted), and
    accord the administrative tribunal below no deference. To do otherwise
    would abdicate our duty to say what the law is. See, e.g., Marbury v.
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018         Page 9 of 17
    Madison, 5 U.S. (1 Cranch) 137, 176 (1803). Such plenary review is
    “constitutionally preserved” for the judiciary, United States 
    Steel, 907 N.E.2d at 1016
    , and considers whether the disputed “decision, ruling or
    order is contrary to law.” Citizens Action Coal. of Ind., Inc. v. N. Ind. Pub.
    Serv. Co., 
    485 N.E.2d 610
    , 613 (1985) (citation omitted). Such legal
    questions are for the courts to resolve and turn on “whether the
    Commission stayed within its jurisdiction and conformed to the statutory
    standards and legal principles involved in producing its decision, ruling,
    or order.” United States 
    Steel, 907 N.E.2d at 1016
    .
    Separation-of-powers principles do not contemplate a “tie-goes-to-the-
    agency” standard for reviewing administrative decisions on questions of
    law. In discharging our constitutional duty, we pronounce the statutory
    interpretation that is best and do not acquiesce in the interpretations of
    others. Deciding the scope of the Commission’s authority under the
    TDSIC Statute falls squarely within our institutional charge. Crafting our
    State’s utility law is for the legislature; implementing it is for the executive
    acting through the Commission; and interpreting it is for the courts.
    Discussion and Decision
    I.       Multiple-unit projects described using
    ascertainable criteria are not eligible for TDSIC
    treatment.
    We conclude the TDSIC Statute does not apply to project categories or
    multiple-unit projects described using ascertainable criteria. The Statute
    requires the Commission to “designate” eligible projects in a threshold
    seven-year plan under Section 10. The only interpretation of “designate”
    that satisfies the dual statutory requirements of particularity and cost
    justification is one requiring projects to be identified with specificity from
    the outset. In addition, Section 9 “update” petitions enable the utility to
    obtain rate adjustments as it completes the approved projects and incurs
    the additional budgeted costs. The only projects consistent with Section
    10’s preapproval requirement are those the utility specified at the
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018          Page 10 of 17
    beginning of the plan, and not “new” projects or those requiring the
    passage of time to specify later. The Commission erred when it authorized
    multiple-unit-project categories in a Section 10 proceeding and approved
    NIPSCO’s later specification of projects under Section 9.
    A. The TDSIC Statute requires the Commission to
    “designate” eligible projects in a threshold seven-year
    plan.
    A utility seeking favorable rate treatment under the TDSIC Statute for
    eligible infrastructure improvements must file with the Commission a
    proposed seven-year plan that designates the planned projects. I.C. §§ 8-1-
    39-2(3)(A), 8-1-39-10(a). The Commission must approve the plan if it is
    reasonable. 
    Id. § 8-1-39-
    10(b). What is reasonable turns on three statutory
    guideposts: (i) the best-estimated cost of the improvements, (ii) their
    public convenience and necessity, and (iii) their cost-justified benefits. 
    Id. A meaningful
    cost-benefit analysis requires the Commission to determine
    whether the estimated costs of the designated improvements are justified
    by their incremental benefits. 
    Id. § 8-1-39-
    10(b)(3).
    If the Commission finds the plan reasonable considering the cost-
    benefit analysis, it must designate and approve projects as TDSIC-eligible.
    
    Id. §§ 8-1-39-2(3)(A),
    8-1-39-10(b). In this context, TDSIC-eligible projects
    are “new or replacement electric or gas transmission, distribution, or
    storage utility projects” that:
    (1) a “utility undertakes for purposes of safety, reliability, system
    modernization, or economic development”;
    (2) “were not included in the utility’s rate base in its most recent
    general rate case”; and
    (3) were “designated” in the utility’s seven-year plan that the
    Commission approved under Section 10.
    
    Id. § 8-1-39-
    2. Thus, both the utility’s proposed plan and the Commission-
    approved plan under Section 10 must “designate” the eligible
    improvements. A project or improvement not “designated” in the seven-
    year plan is not “eligible for TDSIC treatment” under Section 2.
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018          Page 11 of 17
    “Designate” is an undefined statutory term. When interpreting a
    statute, we presume the legislature uses undefined terms in their common
    and ordinary meaning. In re S.H., 
    984 N.E.2d 630
    , 635 (Ind. 2013). As a
    verb, “designate” means, among other things, “to appoint and set apart
    for a specific purpose” or to “specify”. Designate, MERRIAM-WEBSTER’S
    DICTIONARY AND THESAURUS (2007). In TDSIC-3, the Commission
    approved a project category reciting ascertainable planning criteria that
    NIPSCO later used to select specific improvements identified in TDSIC-4.
    For example, NIPSCO’s Section 10 petition identified two project
    categories—“storage” and “inspect and mitigate”—that described future
    asset replacements with reference to annual inspections mandated by the
    United States Department of Transportation. These categories necessarily
    were generic descriptions of NIPSCO’s forthcoming projects—and not
    specific designations of them—because NIPSCO had not yet performed
    the inspections that would reveal which parts of NIPSCO’s system would
    require replacement. That isn’t NIPSCO’s fault; it’s not gifted with
    prevision. But it does mean that NIPSCO’s Section 10 plan could only
    describe the projects it would undertake in the future and could not
    specifically identify them at the outset when it first sought and obtained
    approval for its plan. It is also why NIPSCO’s specific identification of its
    projects did not occur until it later filed plan “updates” under Section 9. In
    other words, only after the Commission found the Section 10 plan
    reasonable was NIPSCO able to identify and prioritize specific work to be
    done based on a preset list of proposed replacement categories.
    We conclude that “designate” in Sections 2 and 10 requires both the
    utility and the Commission to identify the TDSIC-eligible projects with
    particularity in the threshold proceeding and does not allow the approval
    of project categories that require a later specification based on
    ascertainable planning criteria. This interpretation is consistent with the
    further requirement that the Commission meaningfully apply the Statute’s
    cost-benefit guideposts during the Section 10 proceeding and approve the
    project(s) submitted in the seven-year plan. Because Section 2 requires the
    Commission to designate and approve TDSIC-eligible projects only after
    finding a plan reasonable under Section 10, the Commission’s
    reasonableness determination necessarily sets the budget and defines the
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018         Page 12 of 17
    scope of a seven-year plan to what the Commission considered and
    approved in the threshold proceeding. Thus, the Commission order
    approving the Section 10 plan must define the plan’s scope with
    particularity and establish a best-estimate budget for effectuating the plan.
    The Commission’s order does not satisfy these statutory requirements.
    Our view of what “designate” means in the TDSIC Statute is illustrated
    by Major League Baseball’s designated-hitter rule. The rule, which was
    first implemented in the American League in 1973, allows a team to add a
    tenth player to the traditional nine-player lineup who will bat for the
    pitcher, typically the weakest hitter on the field. Before a game, each
    manager’s lineup card must “designate” which player is to serve as the
    designated hitter. Major League Baseball, OFFICIAL BASEBALL RULES, Rule
    4.03(c) & 5.11 (2018). The rule requires naming a specific player as the DH
    from the team’s 25-man roster. Anything less than a player-specific
    identification at the outset of the game will not suffice. It is inadequate, for
    example, for the lineup card to describe the DH anonymously or
    generically as one of the fifteen (or so) remaining players on the roster.
    Waiting until the DH’s turn at bat to identify a player doesn’t comport
    with the rule. Such “player-to-be-named-later” designations in the lineup
    card don’t work in baseball. And neither do “project-to-be-named-later”
    designations suffice under the TDSIC Statute.
    B. Section 9 update petitions cannot add new projects
    beyond those initially approved under Section 10 and
    cannot revise the seven-year-plan’s budget.
    After the Commission has approved the foundational seven-year plan
    under Section 10, the utility may file petitions every few months under
    Section 9 to obtain “automatic” rate adjustments for approved costs and
    expenditures as it completes these improvements and puts them into
    service. I.C. §§ 8-1-39-9(a), (c), (e). These periodic Section 9 petitions allow
    the utility to recoup eighty percent of approved cost estimates. 
    Id. § 8-1-39-
    9(a). The remaining twenty percent—along with any cost overruns that
    are specifically justified by the utility and specifically approved by the
    Commission—is recoverable during the general ratemaking case required
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018          Page 13 of 17
    at the end of the plan. 
    Id. § 8-1-39-
    9(b), (d), (f). The Statute thus fixes the
    approved budget recoverable throughout the duration of the seven-year
    plan.
    With each Section 9 petition a utility files, it must also “update” its
    seven-year plan. 
    Id. § 8-1-39-
    9(a). “Update” also is undefined in the
    Statute. The best reading of “update” requires the utility to keep records
    and supply progress reports necessary for the lawful administration of the
    previously designated and approved TDSIC projects. Considering Section
    2’s definition of eligible improvements and Section 10’s reasonableness
    inquiry, we conclude that a Section 9 “update” requires the utility to
    “identif[y] projected effects of the [seven-year plan] on retail rates and
    charges” and to cross-reference that progress with the approved seven-
    year plan. 
    Id. § 8-1-39-
    9(a). Thus, each Section 9 petition enables the
    Commission to track when preapproved projects are put into service; to
    authorize the “timely recovery of eighty percent (80%) of approved capital
    expenditures and TDSIC costs”, id.; and to prepare for the mandated
    general ratemaking case at the conclusion. 
    Id. § 8-1-39-
    9(d). To be clear,
    Section 9 updates do not authorize the Commission to designate or
    approve new projects at the unit level. Rather, they should merely
    document changes to and developments in the administration of the
    previously approved Section 10 plan.
    Because the Statute neither explicitly nor implicitly authorizes the
    Commission to approve multiple-unit projects as eligible for TDSIC
    treatment, NIPSCO cannot use the TDSIC mechanism to recover the
    multiple-unit-project portions of its Section 10 plan that either were
    identified with particularity for the first time in its TDSIC-4 petition or
    remain unspecified.
    II.     Preclusion principles do not bar the Industrial
    Group’s appeal.
    Finally, we reject NIPSCO’s argument that principles of claim and issue
    preclusion bar the Industrial Group from challenging the Commission’s
    TDSIC-4 order. Merely because the Industrial Group could have
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018            Page 14 of 17
    challenged the TDSIC-3 order, but did not, does not mean the legal
    methodology that order embraced is immune from legal challenge
    thereafter.
    We look to the Restatement (Second) of Judgments to guide our
    preclusion analysis. See Sullivan v. Am. Cas. Co. of Reading, Pa., 
    605 N.E.2d 134
    , 138 (Ind. 1992) (discussing Sections 28 & 29’s adoption of the modern
    rule that mutuality and identity of parties are no longer required for
    defensive use of collateral estoppel); Miller Brewing Co. v. Ind. Dep't of State
    Revenue, 
    903 N.E.2d 64
    , 68 (Ind. 2009) (citing Section 28 for proposition
    that “preclusion may not apply where there are new facts or where a
    change in the law or legal climate would dictate a different outcome”). A
    noteworthy exception to general preclusion principles applies here and
    counsels in favor of our addressing the important legal issues presented.
    An issue is not precluded if “[t]he issue is one of law and … a new
    determination is warranted … to avoid inequitable administration of the
    laws”, RESTATEMENT (SECOND) OF JUDGMENTS § 28(2) (1982). Nor is an issue
    precluded if it is “one of law and treating it as conclusively determined
    would inappropriately foreclose opportunities for obtaining
    reconsideration of the legal rule upon which it was based”. 
    Id. § 29(7).
    Our Court will not foreclose review of a legal issue of first impression
    “when other litigants are free to urge that the rule should be rejected. Such
    preclusion might unduly delay needed changes in the law and might
    deprive a litigant of a right that the court was prepared to recognize for
    other litigants in the same position.” 
    Id. § 28
    cmt. b. If we were to apply
    preclusion principles here, that determination would foreclose ”an
    opportunity to reconsider the applicable rule, and thus to perform [our]
    function of developing the law.” 
    Id. § 29
    cmt. i. This consideration is
    “especially pertinent ... when the issue is of general interest and has not
    been resolved by the highest appellate court that can resolve it.” 
    Id. To be
    sure, the Industrial Group’s failure to appeal the TDSIC-3 order
    does mean, as the Group acknowledges, that specific projects identified
    and approved in TDSIC-3 are beyond challenge. But the Group’s failure to
    challenge TDSIC-3 does not bar the Group from challenging previously
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018          Page 15 of 17
    undesignated and unapproved projects for which NIPSCO sought and
    obtained rate adjustments from the Commission in TDSIC-4.
    The Commission’s legal methodology of approving multiple-unit-
    project categories described using ascertainable planning criteria is a pure
    issue of law, of general interest, that we have not previously resolved.
    And we conclude its methodology remains subject to challenge here.
    Indiana courts have long held that agencies remain free to correct their
    own erroneous interpretations of statutes in later proceedings. Adkins v.
    City of Tell City, 
    625 N.E.2d 1298
    , 1302 (Ind. Ct. App. 1993); State ex rel.
    ANR Pipeline Co. v. Ind. Dep't of State Revenue, 
    672 N.E.2d 91
    , 94 (Ind. Tax
    Ct. 1996). We decline to adopt a preclusion theory that prevents litigants
    from urging such a course correction.
    Conclusion
    We hold that periodic rate increases are available only for specific
    projects a utility designates in the threshold TDSIC proceeding and not for
    multiple-unit-project categories it describes using ascertainable planning
    criteria. The Commission thus erred in approving various proposed
    categories of unspecified improvements that NIPSCO did not identify
    with particularity until it filed subsequent periodic Section 9 petitions. For
    these reasons, we grant the Industrial Group’s petition to transfer. We
    reverse the portions of the Commission’s TDSIC-4 Order that approved
    previously unspecified improvements. And we remand to the
    Commission with instructions to identify such project categories that were
    not identified with specificity in TDSIC-3. The costs for all multiple-unit
    projects as to which particular improvements were identified for the first
    time in TDSIC-4 are disallowed for TDSIC recovery to the extent those
    projects were not properly designated in the previously approved seven-
    year plan.
    Rush, C.J., and David, Massa, and Goff, JJ., concur.
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018         Page 16 of 17
    ATTORNEYS FOR APPELLANT
    Todd A. Richardson
    Joseph P. Rompala
    Lewis Kappes, P.C.
    Indianapolis, Indiana
    ATTORNEYS FOR APPELLEE
    Brian J. Paul
    Daniel E. Pulliam
    Faegre Baker Daniels LLP
    Indianapolis, Indiana
    Claudia J. Earls
    Christopher C. Earle
    NiSource Corporate Services – Legal
    Indianapolis, Indiana
    Indiana Supreme Court | Case No. 18S-EX-334 | June 20, 2018   Page 17 of 17