The Dual-Trigger Doctrine: Supreme Court of Ohio Affirms Multiple 60-Day Windows for PUCO Appeals

Introduction

In In re Application of Duke Energy Ohio, Inc., 2025-Ohio-2082, the Supreme Court of Ohio confronted a jurisdictional challenge that asked whether an appeal from the Public Utilities Commission of Ohio (PUCO) was timely when filed more than 60 days after rehearing was “denied by operation of law,” but within 60 days after PUCO later journalized an order acknowledging that denial.

The Office of the Ohio Consumers’ Counsel (OCC) had appealed PUCO’s approval of Duke Energy Ohio, Inc.’s natural-gas rate increase. Duke Energy moved to dismiss, arguing that OCC’s notice of appeal was late. Writing for the Court, Justice DeWine rejected that argument, holding that R.C. 4903.11 supplies multiple, non-exclusive triggering events for the 60-day appeal clock—either (1) denial “by operation of law” or (2) the “entry upon the journal” of a denial order. Because OCC filed within 60 days of the latter, jurisdiction was properly invoked. This commentary unpacks the decision, the precedent it builds upon, and its broader implications for Ohio utility-law practice.

Summary of the Judgment

PUCO denied the OCC’s application for rehearing by operation of law on January 1, 2024 (30 days after filing, per R.C. 4903.10(B)).
After this Court’s decision in Moraine Wind invalidated PUCO’s tolling orders, PUCO journalized an entry on September 4, 2024 formally recognizing the denial and closing the case.
OCC filed its notice of appeal on October 25, 2024—54 days after the journalized entry, but nearly 10 months after the operation-of-law denial.
Duke Energy argued the appeal window had expired; OCC countered that the September 4 entry provided a fresh appeal trigger.
The Supreme Court of Ohio agreed with OCC, holding that R.C. 4903.11’s plain language permits appeal within 60 days of any of the statute’s listed events. Duke Energy’s motion to dismiss was therefore denied.

Analysis

A. Precedents Cited

In re Application of Moraine Wind, L.L.C., 2024-Ohio-3224
– Declared PUCO’s longstanding “tolling orders” unlawful and confirmed that applications for rehearing are denied automatically if not decided within 30 days.
– Set the stage for the present dispute by forcing PUCO to acknowledge earlier denials “by operation of law.”
State ex rel. Consumers’ Counsel v. PUCO, 2004-Ohio-2894
– Contained dicta appearing to bless PUCO’s tolling practice; the Moraine Wind court disavowed that dicta.
Allegheny Defense Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020)
– Federal analogue striking down FERC tolling orders; cited in Moraine Wind and background for the present reasoning.
Environmental Defense Fund v. FERC, 2 F.4th 953 (D.C. Cir. 2021)
– Held that a party could appeal within 60 days of FERC’s belated journalized denial even though the application had already been denied by operation of law. Justice DeWine found the logic “on all fours” with Ohio’s statute and facts.

B. Legal Reasoning

1. Statutory Text Controls
R.C. 4903.11 allows an appeal within 60 days after: (1) denial by operation of law; (2) the entry upon the journal of PUCO’s denial order; or (3) the order after rehearing when rehearing is granted. Nothing in the statute says these triggers are mutually exclusive.

2. Application to the Facts
• OCC’s rehearing request was denied by operation of law on 1 Jan 2024 (trigger #1).
• PUCO then journalized that denial on 4 Sept 2024 (trigger #2).
• OCC filed its notice of appeal on 25 Oct 2024—within 60 days of trigger #2. Therefore, under the plain language of R.C. 4903.11, the appeal was timely.

3. Retroactivity Debate Rendered Moot
Because the existence of the journalized entry independently conferred a new appeal window, the Court sidestepped the parties’ contentious retroactivity arguments regarding Moraine Wind.

C. Impact of the Judgment

Establishes the “Dual-Trigger Doctrine.” Appellants now have two independent 60-day windows: one from automatic denial, another from PUCO’s journalized denial (should PUCO choose to issue one). Counsel must track both dates.
Encourages Prompt Journal Entries. PUCO may accelerate issuance of journal entries to limit the overall appeal period, knowing that delay only extends the second window.
Litigation Strategy Shifts. Consumer advocates, utilities, and intervenors can choose which trigger best suits their strategic timing, potentially fostering quicker or more deliberate appeals.
Alignment with Federal Practice. Ohio law now mirrors the Environmental Defense Fund approach, promoting doctrinal harmony between state and federal utility-regulation regimes.
Clarifies Post-Moraine Wind Landscape. The Court closes the lingering loophole about how, and when, to appeal orders affected by now-illegal tolling practices.

Complex Concepts Simplified

Denial “by operation of law”: Automatic statutory denial that occurs when PUCO fails to act on a rehearing application within 30 days (R.C. 4903.10(B)). No formal order is needed; the denial happens automatically on day 31.
Tolling Order: A procedural order PUCO once used to “pause” or extend the 30-day deadline. Declared unlawful in Moraine Wind.
Journalized Entry: An official order recorded in PUCO’s docket (its “journal”). Once journalized, the order is final for appeal purposes.
R.C. 4903.11: Ohio statute governing appeals from PUCO to the Supreme Court of Ohio, specifying the 60-day filing window and the triggering events.

Conclusion

In re Application of Duke Energy Ohio, Inc. cements a significant procedural rule: the 60-day clock to appeal a PUCO decision can be restarted by PUCO’s own journalized order, even after a statutory automatic denial has already occurred. This “Dual-Trigger Doctrine” provides clarity and predictability, ensuring that appellants are not penalized for PUCO’s delayed docket entries while still respecting statutory deadlines. Combined with Moraine Wind, the decision fortifies judicial oversight of PUCO and enhances consumer-protection advocacy by preserving access to appellate review. Future litigants must vigilantly monitor both the 30-day statutory deadline and any subsequent journalized orders to safeguard their appellate rights.