Attorney General v. PSC

686 N.W.2d 804
CourtMichigan Court of Appeals
DecidedSeptember 15, 2004
Docket242743
StatusPublished

This text of 686 N.W.2d 804 (Attorney General v. PSC) 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
Attorney General v. PSC, 686 N.W.2d 804 (Mich. Ct. App. 2004).

Opinion

686 N.W.2d 804 (2004)
262 Mich.App. 649

ATTORNEY GENERAL, Appellant,
v.
Michigan PUBLIC SERVICE COMMISSION and Detroit Edison, Appellees.

Docket No. 242743.

Court of Appeals of Michigan.

Submitted January 20, 2004, at Detroit.
Decided July 1, 2004, at 9:05 a.m.
Released for Publication September 15, 2004.

*805 Michael A. Cox, Attorney General, and Theodore E. Hughes, J. Peter Lark, and Donald E. Erickson, Assistant Attorneys General, for the Attorney General.

Clark Hill P.L.C. (by Roderick S. Coy, Haran C. Rashes, and Michael P. Calabrese), Special Assistant Attorneys General, Okemos, for the Public Service Commission.

Before: O'CONNELL, P.J., and WILDER and MURRAY, JJ.

PER CURIAM.

The Attorney General appeals as of right an order issued by the Michigan Public Service Commission (PSC) holding, in pertinent part, that no retroactive ratemaking occurred when the PSC allowed Detroit Edison to defer 1997 extraordinary storm-related expenses and to amortize them during 1998 and 1999. We affirm.

I

On March 14, 1997, an ice storm resulted in power outages to more than 300,000 Detroit Edison customers. On April 6, 1997, a windstorm resulted in power outages to more than 100,000 Detroit Edison customers. On July 2, 1997, a windstorm and tornado left more than 300,000 Detroit Edison customers without power. To address these situations, Detroit Edison authorized overtime, used foreign line crews, and procured materials and equipment on an emergency basis. As a result, Detroit Edison had adjusted storm damage expenses for 1997 of $44,260,513.

*806 Detroit Edison's rates for 1997 had been set in a January 21, 1994, opinion and order in Case No. U-10102, and were based on a forecasted 1994 test year. The 1994 test year amount for storm-related expenses was $14,415,000. Detroit Edison claimed that its 1997 base rates therefore provided for $14,415,000 in annual storm-related expenses. After deducting $14,415,000 from its adjusted 1997 storm damage expenses of $44,261,000 (rounded up), Detroit Edison claimed that it had $29,846,000 in 1997 extraordinary storm-related expenses.

MCL 460.556 provides the PSC with the power to prescribe uniform methods of keeping accounts for electric utilities. Consistently with this authority, the PSC adopted the Uniform System of Accounts, see 1979 AC, R 460.9001, as amended by 1986 MR 12, R 460.9001, including Account 182.1:

182.1 Extraordinary Property Losses.
A. When authorized or directed by the Commission, this account shall include extraordinary losses, which could not reasonably have been anticipated and which are not covered by insurance or other provisions, such as unforeseen damages to property.
B. Application to the Commission for permission to use this account shall be accompanied by a statement giving a complete explanation with respect to the items which it is proposed to include herein, the period over which, and the accounts to which it is proposed to write off the charges, and other pertinent information.

On November 19, 1997, Detroit Edison filed an application with the PSC seeking to amortize the $29,846,000 in 1997 extraordinary storm-related expenses over two years, beginning in 1998. It sought to offset the 1998 amount of $14,923,000 against a previously ordered rate reduction of $53,357,000.[1] Detroit Edison proposed that the net amount of $38,434,000 be refunded to retail electric tariff customers in 1998, and further proposed that the remaining storm expense be deferred and amortized consistent with PSC Account 182.1.

In response to this application, the PSC issued an ex parte order on November 25, 1997, allowing Detroit Edison to amortize the 1997 extraordinary storm-related expenses during 1998 and 1999, and to offset half of these expenses in 1998 against the previously ordered rate reduction of $53,357,000. Because this did not result in an increase in customer rates, the PSC determined that ex parte relief was appropriate and that no contested case hearing was required under MCL 460.6a(1). While an appeal of this order was pending in this Court, the PSC authorized a similar offset of the other half of the storm-related expenses against 1999 rate reductions. This Court then reversed, holding that even though the net effect was a rate reduction, such an offset against a previously ordered rate reduction was in effect a rate increase. This Court also remanded for notice and a hearing on the rate increase as required by § 460.6a(1). See the Unpublished opinion per curiam of the Court of Appeals, issued June 11, 1999, 1999 WL 33441275, (Docket No. 207993).

On remand, the Attorney General objected to the accounting and ratemaking treatment of the storm-related expenses, arguing that Detroit Edison was in effect *807 implementing a rate increase in 1998 on the basis of costs incurred in 1997, constituting impermissible retroactive ratemaking. Noting that the PSC had adopted the Uniform System of Accounts, Detroit Edison argued that it was appropriate under Account No. 182.1 to use deferred cost accounting for the extraordinary costs associated with the unusually severe storm damage. Detroit Edison further argued that once costs were deferred, it was proper to recover the costs during the year to which they were deferred. The PSC held:

The legal principle that prohibits retroactive ratemaking does not support the Attorney General's position. As noted by Detroit Edison, the November 25, 1997 order authorizing a rate credit did not take effect until the beginning of 1998. Thus, it was prospective....

As stated in Account No 182.1 of the Uniform System of Accounts, "Extraordinary property losses," using deferred cost accounting to record storm damages is permissible with prior Commission authorization as an instance of "unforeseen damages to property." ... Although authorization to use deferred cost accounting does not itself alter rates, it may create ratemaking issues if the company seeks to recover the amortization through a rate request. However, it is well established that the rate recovery of amortization is permissible and is not retroactive ratemaking. [Ass'n of Businesses Advocating Tariff Equity (ABATE) v. Public Service Comm., 208 Mich.App. 248, 260-261, 527 N.W.2d 533 (1994)]; Detroit Edison Co. v. Michigan Public Service Commission [Public Service Comm], 221 Mich.App. 370, 374-76, 562 N.W.2d 224 (1997). See [ABATE], 208 Mich. App. at 261, 527 N.W.2d 533 ("Conceptually, ratepayers are charged for the amortization expense when it occurs and, therefore, rates coincide with the expense and are not retroactive.")

On appeal, the Attorney General argues that the PSC erred in concluding that the deferral and amortization of the storm-related expenses did not constitute retroactive ratemaking.

II

Our review of PSC orders is limited.

"Pursuant to MCL 462.25 ... all rates, fares, charges, classification and joint rates, regulations, practices, and services prescribed by the PSC are presumed, prima facie, to be lawful and reasonable. Michigan Consolidated Gas Co. v. Public Service Comm., 389 Mich.

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