The Indiana Utility Regulatory Commission has initiated an investigation to determine whether distributed energy resource (“DER”) aggregators are “public utilities” under Indiana law.[1]
FERC Order 2222 gave DERs the right to participate in wholesale energy markets through aggregators and required regional transmission organizations such as MISO and PJM to file tariff changes to facilitate participation by DER aggregators.
Over the past 18 months, the Commission has conducted stakeholder workshops relating to the implementation of in Indiana.[2] The workshops have discussed interconnection of DERs to local distribution facilities, technical and operational concerns, cost allocation issues, and the extent to which DERs and Aggregators of DERs should be regulated or monitored. After numerous workshops the Commission initiated the investigation to review the public utility status of DER aggregators in order to “facilitate rule development”.
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[1] Investigation into the Public Utility Status of Distributed Energy Regulators, Cause No. 46043 (IURC 4/17/24)
[2] https://www.in.gov/iurc/home/implementation-re-ferc-order-2222/
Erin Borissov is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Indianapolis and Lebanon, Indiana. She advises utilities and business clients in the areas of utility regulatory law, electric cooperative law, easement and right-of-way law, commercial transactions, corporate governance, and corporate compliance.
The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have any questions regarding this article, please contact an attorney.
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Status update (June 19, 2025):
On December 18, 2024, IURC issued a Final Order in Cause No. 46043. The Commission found they lacked sufficient evidence to determine the public utility status of any or all DER aggregators that conduct, or may conduct, business in Indiana. As such, the Commission expressed concern with making a conclusive determination on the public utility status in light of the differences between existing DER aggregation models and the host of potential models. Furthermore, the Order states it is unnecessary for the Commission to make a determination as to the public utility status of DER aggregators because IC § 8-1-40.1 places DER aggregator activities that are conducted under FERC Order 2222 within the Commission’s jurisdiction through direct rulemaking authority. Neither FERC Order 2222 nor IC § 8-1-40.1 require the Commission to make a finding of the public utility status of DER aggregators to manage their participation in the wholesale market. In conclusion, the Commission found that moving forward to a determination based on this record that any or all DER aggregators are public utilities is an unnecessary step to accomplish the purpose of the investigation. The investigation was closed without any finding as to the public utility status of DER aggregators as a class.
Following the December 18, 2024 Order in Cause No. 46043, the Commission resumed its pre-rulemaking stakeholder process to seek input on various issues that might be addressed in rules to implement FERC Order 2222. The most recent stakeholder meeting was May 29, 2025.