Update:  On December 6, 2012, the Supreme Court of Ohio, in a 6-1 decision, upheld the PUCO’s decision and rejected AEP-Ohio’s argument that the SEET law is unconstitutionally vague and, thus, violates the due process clause of the Constitution. OEG argued that the penalty should have been higher because the PUCO should not have excluded profits from AEP-Ohio’s off-system sales from the earnings calculation. The Supreme Court rejected OEG’s argument, giving deference to the PUCO’s statutory interpretation that the PUCO may selectively exclude certain utility earnings from the SEET calculation.

Justice Pfeifer issued the lone dissenting opinion regarding the sufficiency of the penalty, stating, “Our deference to…the commission’s interpretation of statutes diminishes this court’s role in reviewing the commission’s determinations and shifts the balance too far in favor of the executive branch in the separation of powers. Ultimately, Ohio consumers pay the price for that deference. Judging from Ohio utilities’ status at the top of the heap in profits nationwide—CSP had the highest equity return of 143 investor-owned regulated electric utilities in the United States in 2009—that price is steep.”