[Cite as In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638.] 

IN RE APPLICATION OF COLUMBUS SOUTHERN POWER COMPANY ET AL. TO 

MODIFY STANDARD SERVICE OFFER RATES; INDUSTRIAL ENERGY USERSOHIO, APPELLANT; PUBLIC UTILITIES COMMISSION ET AL., APPELLEES. 

IN RE FUEL ADJUSTMENT CLAUSES FOR COLUMBUS SOUTHERN POWER 

COMPANY ET AL.; INDUSTRIAL ENERGY USERS-OHIO, APPELLANT; PUBLIC 

UTILITIES COMMISSION ET AL., APPELLEES. 

[Cite as In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 

2011-Ohio-2638.] 

Public Utilities Commission — “Reasonable arrangements” — Appellant has 

shown prejudice but not legal error — Order affirmed. 

(Nos. 2010-0729 and 2010-0730 — Submitted April 19, 2011 — Decided 

June 7, 2011.) 

APPEAL from the Public Utilities Commission, Nos. 09-1906-EL-ATA, 

09-872-EL-FAC, and 09-873-EL-FAC. 

_______________________ 

O’CONNOR, C.J. 

{¶ 1} In the proceedings below, the Public Utilities Commission 

(“PUCO” or “commission”) allowed the American Electric Power operating 

companies Columbus Southern Power Company and the Ohio Power Company 

(collectively, “AEP”) to adjust their economic-development cost-recovery riders. 

Industrial Energy Users-Ohio (“IEU”) appeals the decision. Finding none of 

IEU’s arguments to have merit, we affirm. 

I. Background 

{¶ 2} In recent years, the commission has approved several “reasonable 

arrangements” between AEP and a southeastern Ohio manufacturing company, 

Ormet Primary Aluminum Corporation. “[R]easonable arrangements” are 
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permitted under R.C. 4905.31 if filed with and approved by the commission. R.C. 

4905.31(E). In this case, the term refers to individually tailored, discounted rate 

schedules. An earlier arrangement involving AEP and Ormet ended on December 

31, 2008. A later arrangement began in 2009.1

 Filling the gap between these two 

is the arrangement at issue in this case—we will call it the “interim arrangement.” 

{¶ 3} Under all three arrangements, Ormet received discounted rates. 

Discounted rates lead to what is known as “delta revenue”—the difference 

between what AEP would have collected from Ormet under its tariffs and what it 

actually collected, given the discount. Ohio Adm.Code 4901:1-38-01(C). When 

the commission approved the interim arrangement, it noted that AEP would keep 

track of its delta revenues, but the commission did not approve their recovery. 

{¶ 4} AEP sought recovery of the interim delta revenues in the 

proceedings below. IEU intervened and opposed AEP’s request, but the 

commission approved it on January 7, 2010. IEU sought rehearing, which the 

commission denied. 

{¶ 5} IEU appealed the order under two case numbers and filed a motion 

to consolidate the two appeals, which we granted. AEP intervened in both cases 

on the side of the commission. 

II. Discussion 

{¶ 6} IEU raises three propositions of law. None have merit. 

A. IEU’s First Two Propositions of Law Have Been 

Resolved by a Prior Decision

{¶ 7} IEU’s first two propositions of law are identical to those that IEU 

raised in case No. 2009-2022, In re Application of Columbus S. Power Co., 128 

Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655. After submitting this case on 

the briefs, IEU filed a motion to dismiss its first two propositions of law because 

 

1. This arrangement is addressed in In re Application of Ormet Primary Aluminum Corp., 129 

Ohio St.3d 9, 2011-Ohio-2377, 949 N.E.2d 991. 
January Term, 2011 

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we rejected those propositions in the earlier case. See id. at ¶ 36–49. We grant 

IEU’s motion and dismiss the first two propositions of law. 

B. Although IEU Has Been Prejudiced by the Order, 

It Has Not Demonstrated Reversible Error

{¶ 8} In its third proposition of law, IEU argues that the commission 

erred by allowing AEP to collect delta revenues arising from an interim 

arrangement with Ormet. IEU asserts that the commission approved the rate 

increase “without any process or review of the lawfulness or reasonableness of the 

interim Ormet reasonable arrangement deferrals.” Neither the commission nor 

AEP disputes IEU’s assertion that the commission has not reviewed the 

reasonableness of the challenged rate increase. Indeed, they make no argument 

on the merits, instead arguing solely that IEU has not been prejudiced. 

{¶ 9} Before reviewing the merits of IEU’s claim, we consider whether 

IEU has been prejudiced. 

1. The Order Prejudiced IEU

{¶ 10} According to the appellees, even if the commission had approved 

unreasonable rates, “future rates will be adjusted to make [the affected] customers 

whole.” IEU responds that the appellees “ignore the immediate harm and 

prejudice experienced by [certain] customers by paying these higher rates,” as 

well as the fact that there would be a delay in review, “possibly for years after the 

rates were paid.” 

{¶ 11} IEU has the better end of the prejudice dispute. The commission 

acknowledges that because of the order, some “customers do pay slightly more 

today than they would have.” Thus, it is uncontested that some of IEU’s members 

are presently paying higher rates as a result of the order. That harm is immediate 

and concrete, and the direct, financial injury could well cause further 

consequential harm. For example, less money now means lost opportunities to 

use that money later, and these lost investment opportunities could result in 
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further financial loss. Reduced cash flows could also have indirect business 

consequences—such as requiring additional borrowing, payroll reductions, or 

other unwanted actions. Thus, to cure all prejudice if present rates are eventually 

judged too high, the commission must not only restore lost dollars to customers, 

but also provide appropriate compensation for any consequential harms. All this 

assumes that the customers, who have already paid the increased rate, remain on 

the system to enjoy any curative credits. 

{¶ 12} IEU has demonstrated prejudice, as it must, Indus. Energy 

Consumers v. Pub. Util. Comm. (1992), 63 Ohio St.3d 551, 553, 589 N.E.2d 

1289, while the claims of no prejudice depend on numerous contingencies. 

Though it is possible that all present harms will eventually be cured, the harm is 

present and concrete, and the alleged cure is speculative. Therefore, we will not 

dispose of this case for lack of prejudice. 

2. On the Merits, IEU Has Not Demonstrated that the Order Was Unreasonable

{¶ 13} Nevertheless, although IEU has shown prejudice, it has not 

demonstrated reversible error. 

{¶ 14} The critical problem is that IEU simply has not presented a 

reasoned theory of legal error. It does not even cite a single legal authority in this 

section of its brief, much less present an argument that a legal authority applies on 

these facts and was violated. This alone is grounds to reject its claim. See, e.g., 

Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio6764, 921 N.E.2d 1038, ¶ 53 (rejecting proposition when “[n]o argument is 

supplied regarding whether the relevant case law, applied to the facts of this case, 

justifies a decision in [appellant’s] favor”); 128 Ohio St.3d 512, 2011-Ohio-1788, 

947 N.E.2d 655, ¶ 56–57 (rejecting argument on the basis that appellant did not 

“even purport to cite a specific legal authority that prohibit[ed]” the complainedof action). 
January Term, 2011 

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{¶ 15} IEU does use the word “unreasonable” to describe the order—but 

simply asserting that a decision is unreasonable is not enough. See, e.g., id. at ¶ 

57 (“Conclusory assertions that the commission ‘cannot’ do something fall well 

short of demonstrating reversible error”). IEU does not go on to provide a 

persuasive explanation of why or how the order fails to accord with reason. Nor 

does it explain which statute requires reasonableness, or what that standard 

entails, or how the order fails to abide by that standard. 

{¶ 16} IEU also points out that the commission had suggested in other 

cases that additional proceedings were necessary. Again, however, IEU does not 

explain how the law is being violated. In any event, the commission asserts that 

the “additional proceedings” are in fact taking place in another docket, and IEU 

does not explain why these proceedings are insufficient. 

{¶ 17} IEU has done little more than register its disagreement with the 

commission’s approach. That is not enough to justify reversal. We presume that 

orders are reasonable; it falls to the appellant to upset that presumption. See 

Columbus v. Pub. Util. Comm. (1959), 170 Ohio St. 105, 10 O.O.2d 4, 163 

N.E.2d 167, paragraph two of the syllabus. IEU has not carried that burden here. 

3. We Do Not Decide the Legality of the Commission’s Approach

{¶ 18} Frankly, we find it questionable whether the law permits the 

commission to increase rates without first reviewing the reasonableness and 

lawfulness of the rates themselves. But we also presume orders to be reasonable, 

and IEU must upset that presumption; it is not the other way around. See id.; see 

also E. Ohio Gas Co. v. Pub. Util. Comm. (1940), 137 Ohio St. 225, 249, 18 O.O. 

10, 28 N.E.2d 599. 

{¶ 19} While there may be exceptions, it is not generally the proper role 

of this court to develop a party’s arguments. See, e.g., Sizemore v. Smith (1983), 

6 Ohio St.3d 330, 333, 6 OBR 387, 453 N.E.2d 632, fn. 2; see also Henderson v. 

Shinseki (2011), __ U.S. __, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (“Courts do 
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not usually raise * * * arguments on their own”). On the contrary, the failure to 

present an argument usually constitutes waiver of that argument, and this general 

rule is only heightened in appeals governed by R.C. 4903.10, which 

jurisdictionally bars us from considering arguments not raised before the 

commission on rehearing (“No party shall in any court urge or rely on any ground 

for reversal, vacation, or modification not so set forth in the application [for 

rehearing]”). See Ohio Consumers’ Counsel v. Pub. Util. Comm., 127 Ohio St.3d 

524, 2010-Ohio- 6239, 941 N.E.2d 757, ¶ 23. Finally, as a matter of basic 

fairness, IEU’s failure to identify a legal problem with the commission’s approach 

deprived the commission of an informed opportunity to set things right. See, e.g., 

Parma v. Pub. Util. Comm. (1999), 86 Ohio St.3d 144, 148, 712 N.E.2d 724 (“we 

do not accept * * * objections” when appellant has “deprived the commission of 

an opportunity to redress any injury or prejudice that may have occurred”). 

{¶ 20} Accordingly, we affirm because IEU has failed to meet its burden 

to identify a legal problem with the commission’s order. To be clear, however, 

our decision does not endorse or ratify the commission’s approach. Nor do we 

hold that the commission’s approach below was reasonable and lawful. 

III. Conclusion 

{¶ 21} Because of IEU’s failure to meet its burden, we must affirm, 

although the commission does not derive the precedential benefit from this court’s 

decision. We hold simply that IEU has given us no reason to reverse. For the 

foregoing reasons, we affirm. 

Order affirmed. 

 PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

_______________________ 

McNees, Wallace & Nurick, L.L.C., Samuel C. Randazzo, and Joseph E. 

Oliker, for appellant. 
January Term, 2011 

7

Michael DeWine, Attorney General, and Thomas G. Lindgren, William L. 

Wright, and Thomas W. McNamee, Assistant Attorneys General, for appellee, 

Public Utilities Commission of Ohio. 

Steven T. Nourse and Matthew J. Satterwhite, for intervening appellees, 

Columbus Southern Power Company and Ohio Power Company. 

__________________