Association of Businesses Advocating Tariff Equity v. Public Service Commission

435 N.W.2d 766, 174 Mich. App. 63
CourtMichigan Court of Appeals
DecidedJanuary 3, 1989
DocketDocket Nos. 100057, 100094
StatusPublished
Cited by3 cases

This text of 435 N.W.2d 766 (Association of Businesses Advocating Tariff Equity v. Public Service Commission) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Association of Businesses Advocating Tariff Equity v. Public Service Commission, 435 N.W.2d 766, 174 Mich. App. 63 (Mich. Ct. App. 1989).

Opinion

D. R. Freeman, J.

These are appeals as of right directly from the Michigan Public Service Commission pursuant to MCL 462.26; MSA 22.45, as last amended by 1987 PA 12, effective March 31, 1987, by the Association of Businesses Advocating Tariff Equity and the Attorney General from the March 31, 1987, unanimous opinion and order of the Michigan Public Service Commission which ordered Consumers Power Company to refund $22,921,444 to its customers pursuant to reconciliation of Consumers’ gas cost recovery plan for the twelve-month period ended December 31, 1985. These appeals were consolidated by this Court.

These cases arise under MCL 460.6h; MSA 22.13(6h), added by 1982 PA 304, which, among other things, provides for the filing of a gas cost recovery plan, annual gas cost reconciliation procedures, refunds to customers, and recovery of excess costs from customers.

It was the position of Consumers that its 1985 gas cost recovery (gcr) reconciliation had an underrecovery of $11,010,121. It was the position of the psc staff that Consumers’ 1985 gcr under-recovery was $7,952,463. It was the Attorney General’s position that certain pipeline billings for production-related costs should not have been included, but should have been separated out and rebilled to customers on a historical, direct billing basis, with the result that the Attorney General said Consumers’ 1985 gcr reconciliation amounted to a $42,011,474 overrecovery. Abate’s position was similar to that of the Attorney General’s, but [66]*66it calculated a 1985 gcr overrecovery for Consumers of $40,207,575.

Under federal legislation, specifically the Natural Gas Policy Act of 1978, 15 USC 3301 et seq., certain production-related costs associated with gas may be recovered by the producer if permitted by the Federal Energy Regulatory Commission (ferc). On July 25, 1980, ferc’s orders relating to these production-related costs became effective. However, Panhandle Eastern Pipeline Company and Trunkline Gas Company, Consumers’ pipeline suppliers, were not permitted to immediately pass through those costs to Consumers. In 1985, ferc did give authority to Panhandle and Trunkline to bill Consumers for these production-related costs. One pipeline billed Consumers $8,502,550, and the other pipeline billed Consumers $44,693,926.

The two pipeline companies offered Consumers the choice of a lump sum payment or twelve monthly installments with interest. Consumers chose to pay in monthly installments which generated tax benefits for the pipelines in 1984. Consumers booked these costs as 1985 gcr gas cost and proposed to include them in the 1985 reconciliation. This would provide for recovery of all but $11,010,121 of the total production-related costs.

Next, Consumers proposed to recover the $11,010,121 through an offset against the remaining Marysville oil entitlement refunds, which totaled $28,863,619. The Marysville oil entitlement refunds refer to two periods of time, November of 1974 through May of 1976, and June of 1976 through December of 1979. Consumers admitted that it had individual customer billing records back to 1980 and magnetic tapes back to 1977.

The Attorney General and abate opposed use of the gas-production costs billed by the pipelines as offsets to the 1985 gcr overrecovery and to the [67]*67Marysville refunds claiming that it was an unreasonable assessment against 1985 customers. They contended that the production-related costs were mainly the result of purchases made during 1980-84 and that historic billing should be used for such costs. The psc staff agreed with Consumers’ approach and a hearing officer found it to be the most reasonable method of handling the matter. The psc concurred, noting:

[Although the cost of setting up a rebilling system is not prohibitive, the result would be to create a situation of trying to collect production-related costs from a substantial number of customers who would have no motivation to pay those costs. The fact that, among other considerations, individual consumption data is not available for the oil entitlement refunds which cover November, 1974 through June, 1976 makes Consumers and the Staffs proposed treatment of this issue the most reasonable.

Specifically, abate and the Attorney General argued to the psc that distribution of the Marysville oil entitlement refunds should be made on the basis of a 1980 distribution, since it was closer to the overcollection period of 1974-79 than was 1985, thus more nearly assuring that the ratepayers who were overcharged were reimbursed. Additionally, abate offered testimony that several 1985 industrial and commercial customers from the historical refund period were now alternate discount tariff customers and would not receive refunds if the 1985 distribution period were used. Nevertheless, the psc opined:

[A]s the Staff noted and the [hearing officer] concurred, the possibility for inequity exists in the choice of any particular historical period when the actual period cannot be used, as in the situation in [68]*68this case since individual consumption data is not available for the actual historical period.
The Staff has quite correctly pointed out that differences in gas consumption for any particular year may negate its suitability as a proxy year. The [hearing officer] succinctly noted that if 1980 were used, there may very well be refunds to customers who were not on the system during the historical period. This argument supports Staff’s contention that inequities will exist no matter which proxy year is selected. Also, the Staff properly contends that many refunds of less than $1 would result if 1980 were used, thereby increasing the likelihood of even larger amounts not being refunded. All things considered, the Commission finds that the use of 1985 as the distribution period for the Marysville Oil Entitlements Refunds is not only logical, but also the most practical choice. We are unpersuaded by the contrary arguments of abate and the Attorney General.

The psc went on to find that the 1985 gas cost underrecovery should be and was offset not only by the Marysville oil entitlement refunds of $28,863,619 but also by unrefunded balances of $2,010,288. This left a total to be refunded of $22,921,444. The psc also found that refunds should be made by bill credits for existing customers and checks issued to former customers in accordance with the standardized refund procedures of Consumers. Rights to any portion of this refund however were not to vest immediately. Indeed, the psc’s order reads in part:

Rights to any portion of this refund shall not vest until a refund amount has been credited to a customer’s bill or a refund check to a customer or former customer has been negotiated.

There are two pertinent provisions of 1982 PA 304. MCL 460.6h(13); MSA 22.13(6h)(13) states:

[69]*69In its order in a gas cost reconciliation, the commission shall require a gas utility to refund to customers or credit to customers’ bills any net amount determined to have been recovered over the period covered in excess of the amounts determined to have been actually expensed by the utility for gas sold, and to have been incurred through reasonable and prudent actions not precluded by the commission order in the gas supply and cost review.

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Related

Michigan Gas Utilities v. Public Service Commission
505 N.W.2d 27 (Michigan Court of Appeals, 1993)
Miller Bros. v. Public Service Commission
446 N.W.2d 640 (Michigan Court of Appeals, 1989)
Abate v. Psc
435 N.W.2d 766 (Michigan Court of Appeals, 1989)

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Bluebook (online)
435 N.W.2d 766, 174 Mich. App. 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/association-of-businesses-advocating-tariff-equity-v-public-service-michctapp-1989.