Anheuser-Busch Companies, Inc. v. Virginia Natural Gas, Inc.

418 S.E.2d 857, 244 Va. 44, 8 Va. Law Rep. 3210, 1992 Va. LEXIS 76
CourtSupreme Court of Virginia
DecidedJune 5, 1992
DocketRecord No. 911879
StatusPublished
Cited by3 cases

This text of 418 S.E.2d 857 (Anheuser-Busch Companies, Inc. v. Virginia Natural Gas, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anheuser-Busch Companies, Inc. v. Virginia Natural Gas, Inc., 418 S.E.2d 857, 244 Va. 44, 8 Va. Law Rep. 3210, 1992 Va. LEXIS 76 (Va. 1992).

Opinion

JUSTICE COMPTON

delivered the opinion of the Court.

In April 1990, appellee Virginia Natural Gas, Inc. (VNG), a public utility providing natural gas sales and transportation services in the Commonwealth, applied to the State Corporation Commission [46]*46for a general increase in its rates. VNG sought an increase that would produce additional annual revenue of approximately $6.3 million based on data for the 12 months ending December 31, 1989. With the application, VNG filed new proposed revisions to its tariffs, including its Interruptible Gas Delivery Service (Schedule 9). Gas delivery service involves the utility’s transportation of gas owned by the customer as opposed to gas owned by the utility.

Appellants Anheuser-Busch Companies, Inc., Ford Motor Company, Nabisco Brands, Inc., Owens-Brockway Glass Container, Inc., Metro Machine Corporation, and U. S. Gypsum Company (collectively, Industrial Protestants) participated in the proceeding, including a hearing conducted over a three-day period before a Commission hearing examiner. The Industrial Protestants are companies that purchase from VNG gas transportation service on an interruptible basis under the Schedule 9 tariff. “Interruptible” service is inferior to ‘ ‘firm’ ’ service because interruptible service can be discontinued by the utility when necessary to serve its firm customers during, for example, the time of peak demand on the utility’s system.

In August 1991, the Commission granted an increase in revenues of approximately $4.7 million to VNG to be recovered principally from VNG’s residential and general gas service schedules; it determined that no part of that increase should be recovered from Schedule 9. The Commission refused, however, to lower the revenues recovered from customers receiving interruptible transportation service under Schedule 9 or to alter the rate design for those customers.

The Industrial Protestants filed a petition for reconsideration attacking the Commission’s directives concerning revenue apportionment and rate design for interruptible transportation service. The Commission denied the petition and the Industrial Protestants have appealed of right the Commission’s decision to maintain Schedule 9 rates without reduction.

In discharging its constitutional and statutory duty to fix just and reasonable gas utility rates, the Commission performs a legislative function. Therefore, the Commission’s findings and decision, which are presumed to be correct, will not be set aside on appeal ‘ ‘unless the Commission has exceeded its reasonably wide area of legislative discretion.” Apartment House Council v. PEPCO, 215 Va. 291, 293, 208 S.E.2d 764, 765-66 (1974). “Moreover, the determination of the sources from which the increased revenues are to [47]*47be derived is peculiarly a responsibility of the Commission.” Id. at 294, 208 S.E.2d at 766.

In fixing rates for a public utility, elementary principles dictate that the Commission must determine the utility’s jurisdictional rate base, its annual gross revenues, and its annual operating expenses. The Commission “must then determine the percentage rate of return on the rate base which will afford the utility reasonable opportunity to earn a fair and just return on its investment.” Secretary of Defense v. C and P Tel. Co., 217 Va. 149, 152, 225 S.E.2d 414, 416 (1976).

When the rate of return has been determined, the Commission exercises primarily an administrative duty in deciding where, how, and from what source or sources the increased revenue awarded is to be obtained. Id. at 152, 225 S.E.2d at 417. “Implicit in this approved method of setting rates is the conclusion that non-cost factors may be considered by the Commission and unequal increases in rates for various classes of services may be granted to accomplish legitimate regulatory objectives.” Id.

Confronted with the foregoing basic rate-making principles, the Industrial Protestants do not contest on appeal the revenue increase ordered by the Commission. They do dispute, however, the details of the Commission’s directives regarding the associated subjects of revenue apportionment and rate design, that is, individual rates within a class.

The dispositive question is whether the Commission acted outside its reasonably wide area of legislative discretion when it declined to change rates applicable to interruptible gas transportation service. We hold that it did not.

In effect, the Industrial Protestants, which received no increase in their rates, insist that they are entitled to a reduction in rates which, if their request were granted, would most likely be apportioned to the residential class of customers. That is because the increased revenues approved by the Commission must be recovered from some source; to the extent the revenue is not recovered from one class, it must be recovered from another.

In asserting that the Commission acted arbitrarily, the Industrial Protestants seek to convince us that the Commission violated one of its “rules” when, in the words of the Industrial Protestants, the Commission set “interruptible transportation rates above cost” and set ‘ ‘the customer charge component of the interruptible transportation rate below cost.”

[48]*48The Industrial Protestants refer to a 1986 Opinion and Order of the Commission styled: ‘ ‘Ex Parte, in the matter of adopting Commission policy regarding natural gas industrial rates and transportation policies.” 1986 S.C.C. Ann. Rpt. 318, 319. Noting that throughout the order the Commission indicated that the order stemmed from a “rulemaking proceeding,” the Industrial Protestants say that its provisions are binding and must be mechanically followed until changed in another rulemaking proceeding, not in a general rate case.

Specifically, the Industrial Protestants refer to finding No. 5 in the order which provides: “That transportation rates should be based on the fully distributed costs as recommended by Staff.” Id. at 324. They argue that, in the order, the Commission limited its own discretion in post-1986 cases and that it excluded consideration of non-cost items in fixing the transportation rate, pointing out that all the evidence in the present case showed that the transportation rate was set above cost. The Industrial Protestants have misconstrued and misinterpreted the nature and scope of the 1986 order.

The 1986 proceeding, which included a hearing, resulted from the Commission’s concern about changes that had taken place in the natural gas industry recently caused by issuance of an order by the Federal Energy Regulatory Commission. The federal order altered the traditional roles of components of the industry such as producers, pipelines, local distribution companies, and end users. The Commission recognized that while the impetus and control of much of the change occurred at the federal level, the successful operation of the federally induced programs would depend upon the approach taken by state regulatory commissions in implementation on the state level. Factors which generated the changes included decontrol of wellhead gas prices, decline in oil prices, and competition in the domestic gas industry from Mexican and Canadian gas.

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418 S.E.2d 857, 244 Va. 44, 8 Va. Law Rep. 3210, 1992 Va. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anheuser-busch-companies-inc-v-virginia-natural-gas-inc-va-1992.